Since November 2020, there’s been a race by states to change election laws, and a national campaign for a liberal reform package, the For the People Act. But until very recently, there’s been almost no debate about the Electoral Count Act, the convoluted and potentially unconstitutional 1887 law that sets deadlines for the certification process and allows members of Congress to challenge vote totals for any reason.
“The Electoral Count Act itself is just infamously complex, opaque and inscrutable,” said Rep. Jamie Raskin (D-Md.), a liberal and constitutional lawyer who has campaigned against the electoral college itself for years. “And it would be quite a task to begin to try to reform it, because there’s a whole lot of inertia involved and multiple booby traps hiding in there.”
It’s a remarkable response to a law that has few, if any, defenders. The ECA was written as a clean-up effort after three consecutive presidential elections that came down to a single state. The disastrous election of 1876 is most famous, but in 1884, a margin of just 1,149 votes in New York sent Grover Cleveland to the White House.
The electoral college is a creation of the Constitution, and debates over whether it should continue to exist — or be changed at all — have been drowned in partisanship and debates about the clout of “smaller states.” The ECA is just a law, though, and could be repealed whenever Congress willed it.
Why would anyone try? As convoluted as the presidential election certification process is, the ECA is a combination of tight deadlines that can complicate close elections, and ways to challenge elections whether or not they’re close. Last year, Sen. Marco Rubio (R-Fla.) tried to revisit that first problem, proposing an extension to the Dec. 8 deadline — the “safe harbor” deadline — by which all challenges to vote counts inside the states must be complete.
“We should give states the flexibility to provide local election officials additional time to count each and every vote by moving the federal safe harbor deadline for states from December 8 to January 1,” Rubio wrote. His proposal got no co-sponsors and has not been reintroduced in this Congress. His office did not respond when asked why, but the Trump campaign’s continued efforts to overturn the election after Dec. 8 revealed how rickety the “safe harbor” was.
After Jan. 6, when Democrats accused Republicans who contested Biden’s victory of subversion and even treason, Republicans had a quick rebuttal: They did it first. “Every Republican president in the last three terms have been objected to by Democrats,” House Minority Whip Steve Scalise (R-La.) said when asked about the majority of House Republicans challenging Biden’s electors from Arizona and Pennsylvania.
Some Republicans went a little further, noting that even robbing Biden of those states’ electors wouldn’t have stopped him from becoming president; he had more than 270 electoral votes without them. In 2005, Sen. Barbara Boxer of California had challenged the 2004 GOP victory in Ohio to “focus on voter suppression,” not to overturn the result. So what was the difference?
The argument was that the challenges, defined by the Electoral Count Act, were pointless — but not that Congress should stop doing this particular, pointless thing. Trump and his allies believed something else — that the law was not pointless, and that the challenges could be used to deny Biden the presidency, if then-Vice President Mike Pence had only gone along with them.
“We cannot overturn the fraudulent election that was stolen from we the people,” radio host and author Eric Metaxas said at this month's conservative Faith & Freedom Coalition conference near Orlando. He glided over the fact that Pence lacked the authority to change the results: “If Mike Pence had done what he might have done, he would be elected president of the United States.”
Democrats and anti-Trump conservatives have grown increasingly worried about that attitude. In selling their For the People Act, the president's party has pointed out that GOP state officials who certified Biden's wins have been purged or subjected to primary challenges; this, they say, is why the federal government needs to step in.
But the Electoral Count Act isn't really part of the discussion. There was no serious talk of adding it to the For the People Act, which was first introduced by Democrats two years ago. The law is so confusing, and so rarely relevant, that it never emerged as a target.
“Updating the Electoral Count Act would be a great addition to that bill,” said Aaron Scherb, the director of legislative affairs at Common Cause, a good-government group instrumental in pushing the For the People Act. “Because presidential elections only occur every four years, there's kind of a natural ebb and flow of what people pay attention to or what problems rise up.”
If there's a full-court press by Republicans against the Democrats' main voting restructuring package, there's indifference about the ECA. Election-watchers have filled the gap, arguing that a simple tweak such as raising the threshold for a challenge — perhaps a two-thirds majority for rejecting a state's electors, not a simple majority — would end some of the confusion, and the fantasies that something in the country's electoral code would allow a legitimate result to get tossed out.
“It's just not on people's agenda, but it should be as part of a larger package of reforms that would be aimed at preventing election subversion,” said Rick Hasen, a professor at the University of California at Irvine, who warned before the election that the system was vulnerable to mischief. “People are focused on putting out the fire in front of them, and this isn't on fire right now. But this is really the ideal time to act. We're far out from the next presidential election. You can't game out what's going to help one candidate or another.”
“Trump’s endorsements: revenge against enemies, rewards for friends and purveyors of election falsehoods,” by Michael Scherer and Josh Dawsey
Why the ex-president went to Ohio.
The dangers of auto-enrolling donors.
The best way to introduce yourself to GOP primary voters: Work to challenge the 2020 election.
Party-building gets easier with both parties moving past the pandemic.
What hath Cyber Ninjas wrought?
The liberals' geezer problem.
Donald Trump's rallies run on the same top 40-friendly playlists, booming out of sound systems for hours until the ex-president speaks. On Saturday, Laura Branigan's “Gloria” was playing when a man with a cowboy hat and a star-spangled bow tie walked onstage.
“Is this crazy or what?” asked Douglas Frank.
For the next 17 minutes, the physicist and freelance election data analyst laid out a debunked theory of how the 2020 election had been “stolen.” When he was finished, Rep. Marjorie Taylor Greene (R-Ga.) grabbed the microphone, telling the crowd that “the Democrats stole the election.” Later, Trump himself told the audience that he was a week away from engineering a “done deal with Iran,” had “the election not been rigged and stolen.”
This was Trump's first traditional “MAGA rally” since leaving the White House, the first not organized by a conference or state party. The hook was Trump's support for Max Miller, a former staffer now challenging Rep. Anthony Gonzalez, one of 10 House Republicans who voted to impeach the ex-president after the Jan. 6 insurrection. Trump mentioned Miller only a few times, with few specifics. “He’s got a passion for this country like you wouldn’t believe,” Trump said. Miller returned the favor, saying he had “never had a greater role model” than Trump, while joking that in 2024, Trump should get elected for a “third time.”
That rhetoric isn't new, but the ongoing denial of the 2020 election results didn't get much play in coverage of the rally. Just a few outlets, including Politico and the Wall Street Journal, mentioned that Trump's team had brought Frank onstage. Among Frank's errors: He uses 2010 census data to argue that, in 2020, some counties had more registered voters than residents, and appeared unaware that Michigan had same-day registration, suggesting that the presence of thousands of new voters on Nov. 3, 2020, was unexplainable, except as fraud. And as Frank pointed out, his research was elevated by Mike Lindell, the MyPillow founder who continues to falsely insist that Trump can be returned to office this year, if the Supreme Court sees this sort of evidence.
“Countless voices have called for a real election investigation and a forensic audit,” the resolution read, before adding that any Assembly members not supportive of Vos's resignation should also resign.
The resolution failed, but not because Vos ignored those demands. One month before the convention, Vos announced that he would tap a team of ex-cops to investigate the 2020 election; at the convention, Vos added that Michael Gableman, a retired judge, would join the team investigating 2020 “shenanigans.” Gableman himself praised the crowd for continuing to raise questions about an election.
“You didn't just grumble about it and go back home and let it let bygones be bygones,” Gableman said. “You recognize that this one is where we draw the line.”
This unfolded as Trump has pressured Wisconsin Republicans, who control the state legislature but not the governor's office, to keep probing the election for evidence that he won. “These REPUBLICAN ‘leaders’ need to step up and support the people who elected them by providing them a full forensic investigation,” Trump said in a Friday news release. “If they don’t, I have little doubt that they will be primaried and quickly run out of office.”
In Pennsylvania, Republican legislators surprised Democrats by saying that their state budget included funding for election audits, if not funding for a look back at 2020. To the GOP's frustration, Pennsylvania's election administration is handled by the Department of State, whose leadership is appointed by the governor, who since 2015 has been Tom Wolf, a Democrat. The auditor's office was narrowly won by Republicans last year, and Republicans proposed new funding for it, saying that $3.1 million would create a new “audit bureau.”
“The time to audit the past election” was last year, House Speaker Bryan Cutler told Jonathan Lai of the Philadelphia Inquirer. “My focus has always been forward, and ensuring that the elections cannot be questioned.” Cutler had previously supported the creation of a new audit bureau in separate legislation, which would not survive Wolf's veto pen. And as Trump showed in Ohio, the sort of experts elevated in partisan election audits may not know what they're talking about.
That's still a developing story in Arizona, where Maricopa County, home to most of the state's voters, announced that it won't use the machinery subpoenaed by the GOP state senate for its audit, which is entering its fourth month this weekend. The GOP-run county government agreed with Secretary of State Katie Hobbs, a Democrat, who worried that the “lack of physical security and transparency means we cannot be certain who accessed the voting equipment and what might have been done to them.”
Glenn Youngkin, “Building the Virginia Dream TOGETHER.” Youngkin's personal wealth has kept him on the air for the past few weeks, with ads that continue to make no mention of his party. “Does anybody really care what party we belong to?” Youngkin tells voters over a few scenes. “Politics is undermining our potential.” The spots from Richmond-base firm Poolhouse complement Youngkin's earned media strategy, which includes going on conservative media to condemn critical race theory and warn that Democrats would hobble the commonwealth's schools in the name of equity. There's a very subtle mention of that topic here, with Youngkin saying schools should “challenge” children.
Kelly Tshibaka, “A Fighter.” An endorsement from Donald Trump has shaped Tshibaka's campaign, which paid National Public Affairs, founded by Trump 2020 veterans, to make this ad. It's light on specifics, promising that the Republican will fight for the Second Amendment and “America First” policies, arguing that Sen. Lisa Murkowski (R-Alaska) “stopped fighting for Alaska years ago.” That's illustrated by footage of her meeting with former secretary of state John F. Kerry, targeting her associations more than her record.
Tim Scott, “I'm With Tim.” The senator from South Carolina has said that his 2022 campaign will be his last, and Democrats, who poured money into the race for the state's other Senate seat in 2020, aren't making much noise about challenging him. Scott's introduction video has the feel of a victory lap, with prominent Republicans endorsing him, repeating the three words in the title. It's notable that Rep. Tom Rice (R-S.C.), the only member of the state's House delegation who voted to impeach Trump, does not appear; former upstate Rep. Trey Gowdy, who quit years ago for a Fox News career, does.
"Write Down Byron Brown"
Buffalo Mayor Byron Brown lost last week's Democratic primary to India Walton, a 38-year old labor organizer and socialist who'd never sought office. He did not concede, though media outlets called the race last Tuesday night. He did not congratulate Walton, who was already being called the city's presumptive mayor because of the lack of Republican competition in November.
Instead, on Monday, Brown launched a write-in bid for a fifth term, telling supporters that he “literally heard from thousands of residents of Buffalo who have said to me that they want me to continue my campaign for reelection,” and that the low-turnout primary — less than a fifth of Democrats cast a ballot — did not reflect the will of the city.
“People are fearful for their children,” Brown said. “They do not want a radical socialist occupying the mayor's office in Buffalo City Hall. We know the difference between socialism and democracy. We are going to fight for democracy in the city of Buffalo. The voters have said that they don't want an unqualified, inexperienced, radical socialist trying to learn on the job.”
Brown repeatedly mentioned “democracy” in his 13-minute speech, casting the Democratic primary as a fluke, albeit one in which 23,000 voters had cast ballots. (Walton declared victory after nearly 21,500 votes were counted, and around 1,500 absentee ballots remain to be processed this week.) In an interview with WGRZ-TV, Walton said she'd been “preparing” for Brown to look for another path to power.
“What we are seeing now is a clamor to maintain power, and enclose power and wealth,” Walton said. “I am a democratic socialist. The first word in that is ‘Democrat.' ” The sort of policies voters discovered during the pandemic, she said, such as enhanced benefits and “free health care,” should have been enough to dispel worries about “socialism.”
Hours later, on a call hosted by the Sen. Bernie Sanders-founded group Our Revolution, Walton said that any Brown write-in campaign would be “fueled by right-wing, corporate interests and large developers.” Brown's speech hinted at that, emphasizing how he'd presided over the city's lowest tax rates in years; he was also urged to run by Carl Paladino, a conservative businessman and failed 2010 gubernatorial candidate from western New York, who suggested he might run if Brown didn't.
A Republican campaign might have been a nonstarter. The party has not seriously competed for the mayor's office since the 1960s, and President Biden won 80 percent of the vote in the city last year. The record for write-in campaigns in mayoral races is less grim; eight years ago, businessman Mike Duggan, kicked off the Detroit mayoral ballot because of a residency snafu, ran a write-in campaign and won. But Duggan was a political outsider who entered the write-in campaign as the favorite; Brown has been ousted after 16 years as the Democratic nominee.
In the states
Democratic Gov. Gavin Newsom of California has a paperwork problem. Last year, his political operation never appealed a ruling in Sacramento County Superior Court, which gave the campaigns to recall him four extra months to collect signatures. That let them gain steam as Newsom shut down the state at the end of 2020, and attended a shutdown-violating lobbyist dinner. Without the extension, the recall campaign was likely to miss the ballot.
Newsom's campaign is now suing to get his party identification on the ballot, taking advantage of confusing but Democratic-backed changes to the recall statute that his operation simply didn't pay attention to before. On Monday, they filed in Sacramento, arguing that the law allowing the targets of recalls to have party identification was unnecessarily, and randomly, strict.
Candidates running in a recall election can list their party designation when they file; candidates targeted by recalls must ask to have their party ID on the ballot within seven days of the recall petition being circulated. (Before 2020, an incumbent's party label did not appear on a recall ballot; the 2003 recall ballot simply asked voters whether they wanted to recall then-Gov. Gray Davis, then listed the candidates running to replace him, next to their party labels.)
“Newsom has filed his party preference well before the recall election has been called, before the nomination period has opened for replacement candidates, and before the form and length of the ballot has been finalized,” Newsom's attorneys argued.
Recall proponents weren't happy about it. “We can't have politicians continuing to change the rules of the game in the middle of the third quarter,” Recall Gavin spokesman Randy Economy said on Monday. It was a judge, not a politician, who changed the recall petition deadline, and it hardly mattered for Newsom. Democrats, who've run Sacramento since 2011, changed the recall laws to protect state Sen. Josh Newman, hoping that longer deadlines and other rules would protect him from a 2018 ouster. It didn't work, for either side — Newman returned in 2020 — but the recall complications came back to bite Democrats.
While Newsom's team filed its lawsuit, the Democratic supermajority effectively undid one of the changes that was meant to delay Newman's recall, allowing the state to skip a legislative review process if it puts up the money estimated to conduct the recall. Democrats got an estimate this month ($215 million) and forged ahead, attempting to hold the recall as soon as possible.
“The conclusion is inescapable that Gavin Newsom is cheating in the recall and this legislature is his willing accomplice,” declared GOP Assemblyman Kevin Kiley, a recall backer who is still considering whether to enter a race where no Republican has caught fire yet.
One of those Republicans, former Rep. Doug Ose, challenged his best-known rivals to a series of debates. “California voters deserve better than bob-and-weave,” Ose said on Tuesday. “We need an honest exchange of ideas.” He included Newsom in the list of prospective candidates for a debate, though the governor has shown no interest in engaging Republicans individually, preferring to attack the entire effort as a “Republican recall.”
We're closer to knowing who won New York City's first ranked-choice election, with the board of elections releasing the first reordering of voter preferences as absentee ballots continue to trickle in. Today, one week after the primary, is the deadline for absentee ballots; they had to be sent by Election Day, but the count of those ballots won't begin until the first ranked-choice count is over. Eric Adams, the Brooklyn borough president, might be mayor at the end of this. But he might not be.
Got all that? Yes, it's confusing. Every voter, in person and absentee, got a ranked-choice ballot. A pre-canvass total of 798,491 ballots were cast in person, across the city. On Tuesday, the BOE calculated how in-person voters ranked their candidates, redistributing votes from the worst-performing candidates, until one candidate gets 50 percent of the ranked vote. The city's first tabulation found Adams just 2 points ahead of Kathryn Garcia, still too close to call before absentee ballots come in.
Absentee voters got the same ranked-choice ballot, but their votes won't be counted for days. As of Tuesday morning, more than 124,000 absentee ballots had been returned, a number that could rise by the close of business. Voters who made mistakes on those ballots have a few days to “cure” them, a rule common in states with expansive absentee balloting. (New York expanded its own options during the 2020 election.) And the BOE isn't expected to add those to the total until July 6.
No election is over until the results are certified, but depending on how many absentee ballots are left, some candidates could get clarity this week. Adams got 83,477 more first-choice, in-person votes than any of his rivals in the mayoral contest, but less than 12,000 votes separated him and Garcia when the ranked-choice count began. On paper, there are enough outstanding votes to erase that margin; some polling before last week found that Garcia, or attorney Maya Wiley, could overcome Adams when the ranked-choice count was complete.
In a statement Tuesday afternoon, Adams said the vote tally was marked by "irregularities," without providing evidence to back up his claim.
“The vote total just released by the Board of Elections is 100,000-plus more than the total announced on election night, raising serious questions," Adams said. "We have asked the Board of Elections to explain such a massive increase and other irregularities before we comment on the Ranked Choice Voting projection."
Most of the city's races, as well as a Democratic primary for mayor of Syracuse, are unlikely to be called soon. In the primaries for comptroller, and in four of five borough president races, the gap between the two candidates leading with in-person, first-choice votes was in the single digits. (Democrat Mark Murphy has a comfortable lead in the Staten Island race, but the Republican contest is within a few hundred votes.) Just 17 of the 51 Democratic primaries for city council have been declared by the Associated Press; the rest are going to the long count.
… 13 days until all ballots are ranked and counted in New York
… 28 days until the special election in Texas’s 6th Congressional District
… 35 days until primaries in Ohio’s 11th and 15th Congressional Districts
… 126 days until primaries in Florida’s 20th Congressional District