Advisory Opinions - Judge Luttig Talks Electoral Count Act Reform

Episode Date: July 26, 2022

Former federal judge John Michael Luttig joins Sarah and David to detail his involvement in the events leading up to January 6, 2021. He reveals the story behind his tweet thread on January 5 that ended up on the front page of the New York Times, and the problems with the Electoral Count Act of 1887. Plus: Luttig walks us through his comprehensive, published study refuting election fraud claims in the 2020 election.   Show Notes: -Judge Luttig’s January 6 testimony -Judge Luttig’s January 5 tweet thread -Lost Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Election -The Dispatch: A 2020 Election Report ‘By Conservatives, For Conservatives’ Learn more about your ad choices. Visit megaphone.fm/adchoices

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right here in our aisles. Find it all here with more ways to save at Real Canadian Superstore. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we've got a fantastic guest here today.

I'm going to let Sarah introduce him. And I just wish you all were listening to the green room before we went on the air. I can't disclose what was said, but it would have been just worth the entire hour. But this is a guest. He's overdue. It's overdue to have him on the podcast. We talked about him just a bit in our podcast with Akilah Marr from Yale. And Sarah, introduce our esteemed guest, please. He's shy, shy David that's why he hasn't been on the podcast as you're about to find out joining us today is judge Michael Ludig you've heard plenty about him on this podcast and everywhere else for that matter but to run through a little bit of the

bio he first of all most importantly I think was born Texas. So we can sort of stop the bio there. Most importantly. Now, went to Washington and Lee's, a W&L grad, University of Virginia for his law degree. You must have been, we'll get to this, but one of the first clerks for Justice Scalia in the first class of clerks for him. But then you clerked a second time, violating my multiple clerkships rule, though perhaps this was a little bit before that was particularly en vogue.

I learned this actually from Wikipedia. I knew you were a burger clerk after you clerked for Scalia, but you were the co-executor of Burger's one-page will. That is a clerk relationship there. Of course, you went on to the Department of Justice Office of Legal Counsel, and then you were appointed to the Fourth Circuit, becoming infamous. And in fact, well, you left, you went into private law practice, general counsel. You've done several many things.

You're really back in the public eye now talking a lot about Electoral Count Act. You advised Vice President Pence in the run up to January 6th. We'll get to various things. But my first question to you, Judge Ludig, is that for the years that you were on the Fourth Circuit, you're the people who clerked for you. It was infamous that if you clerked for Judge Ludig, it was the apotheosis of law school clerkships. And those people were called ludigators. There was actually a term for your clerks and your clerk family. I am not aware of any other judge that had a term for their clerks. Then, now, in the future, I'm curious where that came from, if you even know, of how the

litigator nomenclature arrived. Thank you, David. Thank you, Sarah. It's a pleasure to be on. I hope that that mantle was not infamous as opposed to famous. But regardless, it's not what I ever called my own law clerks. I couldn't say on this podcast what I usually call my law clerks, but it was not litigators. So where the etymology of the term, I have no idea. And of course, from the judicial standpoint, not that this matters to anyone in the world. You know, one's law clerks would never be called, you know,

litigators or the name plus gators for a federal judge because the law clerks, you know, they may or may not eventually be litigators, which is the play on the term. But in any event, that's neither here nor there. And I'm just glad to be with you today. And I hope the listeners understand that really the synopsis of my resume was really just to say that I'm old now. Well, but notably, you were the youngest judge, 37, on any of the circuit courts at the time you were appointed. That was then. Which, 37 on the Fourth Circuit. And, I mean, there's some fascinating story here.

You and John Roberts are serving in the Department of Justice together. And I'm going to get this slightly wrong, but give or take, you both get nominated around the same time, but his nomination gets stalled and you make it onto the Fourth Circuit. And he has to wait another 10 years to get on the D.C. Circuit. So you got a 10-year jump on him. Yes, I drew the short straw. John and I were very close friends in those years and continue to be close friends, though, of course, because of his position, you know, we don't get to say that Boyden Gray was the sponsor of both of us for the courts of appeals. Although if you go back and do your research, I think Boyden was gone at the time by the time that John was ultimately nominated. But Boyden, for instance, called me at that time to brainstorm about how we could get our friend John re-nominated and put on the Court of Appeals.

And you, of course, worked on the Clarence Thomas nomination, confirmation, and Souter, right? nomination, confirmation, and suitor, right? Correct, both of them. You know, the, my dear friend who recently passed away, Ken Duberstein, was chosen by the White House to be the political Sherpa, if you will, of both of those men through the Senate. And at the same time, I was named by the White House as the, call it the legal Sherpa, through the Senate process. So you know a couple branches of government, David. That's the point. I brought you an expert. Go. And not only do we have an expert, we have somebody who is at the center of national controversy and one of the most contentious moments in modern American history. Judge, you've already testified before the January 6th committee, and we can put

that in the show notes. But for those who did not see your testimony, there was a time, and this is going to be an entree into our discussion about the Electoral Count Act, there was a time in December 2020, I believe it was in December, wasn't it, when you were first contacted, where all of a sudden your thoughts about the Electoral Count Act became of vital national importance. So if you could kind of walk through that story a little bit as we walk into this discussion about the Electoral Count Act and the 2024 election and saving the republic. What happened and what role did you play? The first call actually came to me on the evening of January 4th, David. And I was out in Colorado, where we have a place, and was not really following things closely, though I had been following the run-up to the former president's effort to overturn the election.

And I got a call that night from a dear, dear friend, Richard Cullen, who had been at that point Vice President Pence's outside counsel, if you will, for the better part of the administration, brought in primarily to advise the vice president for the duration of the Robert Mueller investigation. of the Robert Mueller investigation. But in any event, Richard Cullen and I had gone back 20, 30 years at that point. We had actually been talking almost multiple times every day for the past two years in January of 2021 about everything in Washington, D.C., because we had mutual friends, including then Attorney General William Barr. And so I was involved with a lot of things in Washington in that year, year and a half lead up to January 6th. But that's a long way of saying that when Richard called me the night of January 4th, it was really no big deal at all. And he said, he calls me Judge, which, you know, is fine. He says, Judge, you know, do you know John Eastman? You know, do you know John Eastman? And I said, yes, I know John. And he said, well, what do you think about him? And brilliant intellect, you know, conservative, you know, man,

a man who was older than most of my clerks were at the time that he clerked with me. And, you know, we're friends. and I said, why are you asking? And he said, you don't know, do you? And I said, I guess I don't. And he said, well, the John Eastman is advising the president and the vice president right now that that the vice president has the the authority on January 6th to dismiss, not count, you know, some of the electoral college votes from six or seven of the swing states. And I said, no, I had not known that John was was advising the president. And I said, you know, me, I usually have a view on things, particularly on things of of some gravity and consequence. If I've had time to think about them. I don't ever shoot from the hip,

as Sarah knows, but I had a view on that, and I said that night to Richard, I said, well, you can tell the vice president that I said that he has no such authority at all, that he's required by the Constitution and the Electoral Count Act of 1887 to count the electoral votes as they've been cast by the Electoral College. He doesn't have the power or authority to do anything otherwise. And Richard said, well, thank you. I've already told him that's your view. And I said, oh, okay, well, then fine. You know, tell the vice president, Richard, that I would be glad to help in any way I can, but I don't have any idea how I could help him

at this point. This is the night of January 4th, and in retrospect, we now know that I believe that that was one of the two fateful meetings in the Oval Office, during which the president, the vice president, the vice president's chief of staff, Mark Short, and John Eastman were in attendance. And John made his case to the president and the vice president that the vice president could do what the former president was asking him to do. I did not know that at the time. So the call came while my wife and I were having a dinner out here in Colorado. And so it was probably, I would guess, eight or nine o'clock there in Washington, D.C. So when I hung up, my wife, you know, of 40 years, you know, who knows everything and knows my every thought, said something like,

what on earth was that? And I told her, and she said, you know, oh, my God. I told her and she said, you know, oh, my God. And she said, as she is want to do, she said, you've got to do something here. And I said, well, I really have nothing whatsoever to do with this. And there's no chance in the world that I ever would have anything to do with it. You heard me say what I said, and that would go back to the vice president. And then that's it. Well, we continued to talk about it over dinner and then thereafter. And Elizabeth said, look, you have to say something publicly. And I said, it's really just not my role at all, you know, to say anything publicly.

And it is incidentally, no one would care if I did say anything publicly. And but she, you know, she she continued to harass me through the evening. And then, you know, finally, as we went to bed, she, you know, she made one last plea and said, look, this is a serious matter, and you need to speak up. And I said, look, hon, I understand. I agree. I've said what I could say to the most important figure in the world at the moment, and that's to the vice president, and there's just nothing else I can do. And we went to bed. So the morning of January 5th, I get up early, around 4.30. And so that's probably about the time Sarah gets up.

That's the dead middle of the night, Judge. And so I was having my coffee here, you know, probably 530, maybe six. And Richard calls again. And this time, you know, he says, Judge, we have to do something. And we have to do something quickly. And I said, well, what do you mean? And he said, well, we've got to help the vice president right away. And I said, well, Richard, I don't even know what you're talking about uh and he said well the the vice president's meeting with uh uh then president trump in the

in the oval office on uh for lunch on the 5th and at that point you know the vice president's going to to tell the president i think again that that, that he was not going to overturn the election as the president wanted him to do. And Richard said, we've got to do something fast. And I said, Richard, I really don't even know what you're asking. What do you mean, we who? And what are we supposed to do? And he said, I don't really know. And I said, well, if you don't know what we're supposed to do, how am I supposed to know what we're supposed to do? And he said, well, look, this is urgent. And I said, I understand. And he said, we've got to get your voice out to the country somehow. And I said, good grief, Richard. You know, I don't even have a job at the moment. And I don't have an office. I don't have a platform. I don't even have a fax machine out here in Colorado.

And I don't even understand. I wouldn't know how to get my voice out to the country if I thought I wanted to get my voice out to the country. And he said, OK, I'll call you back in five minutes. And I said, well, you can call me back every five minutes if you want, but I don't have any idea what you're even talking about. So he calls back in five minutes with with even added urgency and says, have you thought of anything? And I said, no, I really haven't. I've just been finishing my coffee here. And, uh, and he said, I'll call you back in five more minutes. Um, and you know, I mean, even though I get up early, this was, you know, still before 6 AM and, and, uh, you know, my mind was working, but it, you know, it was slowly slower. And, uh, he calls me back

and says, have you thought of anything? I said, no. And he says, uh, look, I can, I, I, I I'll call back in 10 minutes, but we have to get this done right away. And, uh, so he called back in 10 minutes and, and I, he said, have you thought of anything? And I said, well, I just opened a Twitter account a couple of weeks ago, but I don't know how to tweet. And he says, that would be perfect. I don't know how to tweet. And he says, this is it. This is what you have to do. You know, call me back right away and tell me what you're going to say. And so we hung up and I typed out on my iPhone, you know, exactly actually, what was the tweet. And I called him back and I said, look, this is what I'm going to say. And he said, it's okay. Whatever it is, is okay. And I said, well, no, no, I'm not doing this unless the vice president himself approves every word.

And Richard says, I said, well, that's just not going to happen. It's not necessary. And I said, well, it's necessary for me, Richard. You know, I'm well aware of this moment in history. And if you think I'm going to tweet something on this issue, you know, to the world without the vice president agreeing to every word, you're just mistaken. And he said, you know, he was a little bit impatient and said, okay, I'll call you right back. And he calls me right back and he says, whatever you say will be fine. And I said, no, it's not because I want the approval. And he said, look, judge, that we don't have much time left. I'm giving you my word that whatever you say will be fine. And I said, well, Richard, I don't like this one bit and I don't appreciate

you putting me in this position, but I'm going to do it. And he said, okay, let me know as soon as you've done it. So I go downstairs and then that begins a process that we won't go into in great detail, wherein I try to figure out how to tweet, you know, I don't even know what the right words are, multiple tweets in a single tweet thread or, you know, something like that. Well, I didn't know how to do that. I only knew that I had 140 characters or 160 or whatever, you know, so I get my son on the phone and i say look i gotta send a multi bunch of tweets i just said a bunch of tweets all at once and he said uh like every 25 year old to their parents he said uh i don't have time for this dad you know um you know you

need to learn how to do this you're just a a dinosaur. And I, and I said, well, look, I don't have time for this either, John, you either tell me how to do this, or I'm going to cut you out of the will. And, uh, and he said, uh, grudgingly, he said, uh, okay, I'm going to send you the Twitter instructions right now. And he did. So I followed those instructions, uh, And he did. So I followed those instructions and and, you know, proofread 10 times over and and eventually pushed the button. David that said tweet. And I had no earthly idea that anyone would ever see it. one would ever see it. And so about 10 minutes later, Richard calls back and says, it's on the front page, your tweets on the front page of the New York Times. And I said, what, what are you even talking about? And, and, and he said, you can pull it up right now. And so I pulled it up and, you know, and the New York Times had the tweet.

And I didn't even care at that point. I just, I said, all right, Richard, whatever. And that's the story of the tweet, David. Embrace something new at Starbucks. Introducing the Ice Lavender Cream Oat Matcha Tea Latte. A creamy drink where smooth matcha meets subtle floral notes from our airy lavender cream cold foam. Only this spring, only at Starbucks. Ice Lavender Cream Oat Matcha Tea Latte includes dairy. Matcha tea latte includes dairy. So let's fast forward then.

We now, two years later, everyone agrees the Electoral Count Act is a disaster. The Senate has come up with some language to replace it. It would clarify the vice president's role. It would raise the bar for objections to one-fifth of both houses versus where we before we had just one and one one member in each house mark elias the democratic lawyer says he hates it plenty of other democrats bob bauer for instance, various law professors have criticized Mark Elias' criticism, saying he, paraphrasing here, doesn't know what he's talking about, which would not be that unusual in this case. But I think there's a couple questions here. One, so for instance, it also says that the governor's slate of electors will be sort of presumptively the correct slate, things like that. Are we, A, are we fixing the right problems?

B, are we fixing them enough? And C, and this is the Akhil Amar question, at the end of the day, what this does is fast tracks any problems, anything in a close election to the Supreme Court. Akeelah Marr says, no, it should be decided by both houses of Congress. And I'm curious what you think of this draft legislation generally. I guess you call that a question. I do. It's like a it's a 17 17 part question. Um, good luck. Yeah. It's a, it's a reporter's question. That's for sure. All right. Well, where, where to start? Um, first, first, uh, you know, I had to have a, at least a, um, a grounded understanding of the Electoral Count Act together with the 12th Amendment and actually a rudimentary understanding of the independent state legislature

theory of constitutional interpretation on January 5th before I tweeted the advice that the vice president did not have any authority to do what the former president wished. So then if you fast forward from then to a year ago in March of 2021, I actually wrote an op-ed in the Wall Street Journal with my friend David Rifkin. We read it on this podcast nearly in its entirety. Yes, we did. We did indeed. Well, thank you. And I think that we, for the first time, to my knowledge,

said that the act was unconstitutional. We, having done our research, we concluded that there was not only no evidence that the founders intended Congress to play a role in the, quote, choosing, you know, of the president, but there was, you know, affirmative evidence that Congress did not want Congress to play any role other than a ministerial role in the selection of the president. So we concluded that the Act of the Electoral Count Act of 1887, which is the current law today, was unconstitutional to the extent that it gave Congress the authority, Congress gave itself the authority in the act to decide the presidency in a host of different circumstances. So we wrote that, And I don't remember anyone having a serious rejoinder to that op ed that we at least took seriously. year plus ago, I began receiving calls from various senators and staffs of senators and House members asking me if I would, you know, talk to them about reform of the Electoral

Count Act. And of course, I said I'd be more than glad to. So so I started each of those, you know, 10, 15 conversations by saying to the staff, look, I don't know that you'll ever be able to amend the act for the simple reason that all senators and all House members would like to be able to decide the presidency when they want to decide it. I said, the only hope that you have in amending the act is that those people who want to be able to decide the presidency when they want to, don't want the other party members to be able to decide the presidency when they want to decide the presidency. And I put it probably a little more elegantly and clearly. And all the staff nodded affirmatively and said, yes, that's a problem. The problem being that the politicians on Capitol Hill, they do want to be able to decide the presidency whenever they can. And that's fine.

You know, they're politicians. That's the way they think. But I began about a year and a quarter ago, advising and consulting with various of the staffs, including, I don't think I'm speaking out of school, the bipartisan group of senators who most recently have made their proposal. So turning then to the substance of the proposal, this is not the way you start to amend legislation, but as a practical and political matter, this is how you start this amendment, which is how do we prevent another January 6th? Well, to prevent another, and by the way, our op-ed in the Wall Street Journal was entitled that Congress sowed the seeds of January 6th in 1887 via the Electoral Count Act. And that's been my view ever since january 6th that that that it was the the electoral count act that created the the the moment of january 6th

it had there not been an an electoral count act i don don't believe January 6th would have occurred for this reason. Assume hypothetically that Congress had no role whatsoever on January 6th. Would there really have been, well, first off, there would never have been a riot or attack on the Capitol for the purpose of disrupting the count. Why? Because the world would have understood that Congress could not do anything but count the electoral votes from the states. But under the Electoral Count Act, as we all know, votes from the states. But under the Electoral Count Act, as we all know, Congress on that day actually could have determined the presidency by taking objection to various electoral slates from the swing states and affirming the objections, thereby rejecting the electoral votes from those swing states and awarding the presidency to Donald Trump.

That's just as a factual and legal matter under the Electoral Count Act, Congress could have done it. And of course, as we know, any number of members and senators tried to do that, acting pursuant to the Electoral Count Act. In the Senate, it was Senator Hawley and Senator Cruz. And in the House- Wait, we need a little asterisk there, because Senator Cruz clerked for you. He is a litigator. This caused any bit of controversy on Twitter. I did not put that asterisk in, nor would I have. You tweeted about it. I didn't tweet about the fact that he was my law clerk, as you'll remember. But everyone else noted it. I know. Yes, yes. So that was, you know,

he did what he did and Hawley did what he did. But our point today is Congress could have awarded the presidency to Donald Trump on January 6th. And everyone who rioted the Capitol, most importantly, the person who knew that was possible was Donald Trump. And that's why he, I'm only going to use the word, urged his supporters and allies to march to the Capitol and disrupt the count. So with that long background, turning to the legislation. So if you want to stop

or prevent to the maximum extent possible another January 6th, you have to attack the issue from both ends, if you will. One, the congressional end. But secondly, and as importantly, you have to attack it from the state end of the process. So turning to the legislation and the congressional end of the process, what this legislation does is, through a number of amendments, minimize to the maximum extent politically possible, the role of Congress. And it does that by addressing literally the powers of Congress on January 6th, but also in limiting the electoral slates that will be forwarded to Congress to count from the respective states. So as to the congressional end of it, as Sarah noted,

under the existing act, a single member of the House and Senate can object to an electoral slate and force the decision as to that slate into the individual joint session, but individual houses of the House and the Senate for decision. of the House and the Senate for decision. Once that, those two objections, just two objections to a single state slate, take Pennsylvania. In this case, it could have been Arizona, could have been Georgia, could have been any of others, but take Pennsylvania with a lot of electoral votes. One person in the House, one person in the Senate could force the entire Congress of the United States to an up or down vote on whether to accept that state's electors. And in this legislation, as Sarah noted, the bipartisan group of senators ratchets that number who are necessary in order to force the decision into the joint houses to 20% of each house, which is a significant number. I had earlier written, I think in the

first in the New York Times, that that number should be ratcheted up to as high a number as politically palatable. 20%, look, I'm indifferent. I don't care. 20% is a lot. If they could get 50%, I would be happier. So, and then as to their own power, the bipartisan group actually limits the grounds for objection, not just the numbers of people who need to object, but the actual grounds to objection, essentially to a single ground or two two where the electors are not the electors or are arguably not the electors that were chosen

by the state and officially certified by the state. And so under the existing act, there were two undefined ambiguous grounds on which anyone could object and sustain the objection. So this is a vast improvement already with this proposed legislation. So then turning then to the other end of the process, and I would just repeat, to successfully amend this act so as to prevent another January 6th, you must address both ends, Congress and the state. So as to the state end of this process, this legislation just tightens down the screws on the state process for the appointment of electors and for the electoral votes. In several different ways, key of which are these. key of which are these. The first, which Sarah also mentioned, is that this legislation identifies the executive of the state as the certifying individual. So every slate of electors

that's transmitted to Congress must be certified by the governors of the states or in the case of the District of Columbia, the mayor. So but but what it does next is the most important thing. Well, no, let me say first. and sequence the various actions that are necessary before transmittal of a state's electoral votes to Congress so that everything is done from the election to January 6th and completed in order that the slate certified by the governor and transmitted to Congress is the conclusive state, conclusive certification in the words of this of this of this legislation so then to the point that that's the substantively the most significant um this legislation and this is what i had urged from day one um and it's very interesting as a matter of constitutional law but but I had urged from the very beginning, including in the Wall Street

Journal op-ed, now that I recall, that all disputes in the states over the electors, all of them, should be decided by the federal courts. There are two choices. There are two choices in this process. Three. Right now, the disputes are decided first in the states and then eventually in Congress.

And the Electoral Count Act, as we've just discussed, presupposes multiple slates coming from individual states, which is a disaster. And it's particularly a disaster if you understand what gave rise to the Electoral Count Act of 1887 in the first place, which was the election of 1876, where multiple states submitted competing electoral slates to Congress.

And Congress, of course, had no earthly idea what to do with that and ended up establishing a commission, and ended up establishing a commission, if you can even imagine, a commission of three Supreme Court justices and other judges. It's just what Congress always does, you know, is create a committee. But in this instance, it was a committee to decide literally who the next president would be, you know, Hayes or Tilden. So with that chaotic experience before them, that Congress in 1887 decided to, by law, just establish the guidelines by which Congress would decide when electoral slates are submitted. So it was a disaster from the outset. But in this new legislation, all disputes have to be resolved in the federal courts, eventually in the federal courts, by a date certain, which would allow the governor to certify the electoral slate to Congress before the designated day that the electors meet to cast their votes for the presidency, which, you know, heretofore has been around mid-December sometime.

But I know this got long-winded, so let me sum it up this way. In this legislation, all issues, all questions, all disputes as to the electoral slates from a given state have to be decided by the federal courts ultimately by a date certain, in time for the governor to transmit a single electoral slate that's conclusive to Congress. And that's the case for all states under the legislation. This is, it's about as much as perfect an amendment to the act as is politically achievable, in my view. I've seen some of the Twitter exchanges between and among the likes of Mark Elias and Seligman and others who truly are experts. And I was surprised when I first read Mark Elias's tweet analysis. I shared his goal and his objectives, but I didn't think that his criticism were well taken under the act.

But I just wanted to address that since you raised it, Sarah. So we've taken up a lot of your time, Judge, so I don't want to take up much more. But there's one other thing I want to raise, and that is you, along with a number of other conservative legal scholars, put out a very comprehensive study of the 2020 election itself called Lost, Not Stolen, the conservative case that Trump lost and Biden won the 2020 presidential election. And we'll put that in the show notes so that people can read it for themselves. But if you could kind of tell us about that report, you don't have to walk through it, but how did this come about?

Why did you do it? My involvement came about through my longtime friend, Tom Griffith, who fairly recently resigned from the United States Court of Appeals for the District of Columbia Circuit. Although former Judge Michael McConnell and I are also dear friends going back to the Reagan administration. But Tom called me one day, let's say four or five months ago, I think, and said, look, this is what we need to do.

And which is explain to, you know, conservative deniers of the election that actually Trump lost the election, and that it was not stolen from him. And at the time, and for several months after that, David, I told Tom, I said, look, Tom, the people who believe the election was stolen don't care. And and and they're not going to care one whit what we say. They the election was stolen in their view. They're certain of that. And some report by, you know, a couple of federal judges isn't going to make a difference.

So I took that position for several months until one day for reasons that I don't care to discuss here, but related to my friendship with Tom. I said, look, Tom, you know, we've spent a lot of time together in this life. If you want me to add my name to this, I'd be glad to. And I did. And so we got at the time, the originators of the project were Tom Griffith, Michael McConnell, the two former judges, Ben Ginsberg and David Hoppe. Ben Ginsberg and David Hoppe, and also David Becker, I believe. And then we ended up adding just several more signatories, you know, carefully chosen to include Ted Olson, former Solicitor General, and former Senator Jack Danforth, and former Senator Smith. And what we did in that report was analyze every single claim brought in in federal court by Trump and his supporters during the 2020 election cycle.

And then we also analyzed all of the audits in the respective states post-election. And we concluded that there was very little fraud at all, and certainly no fraud anywhere close to sufficient to change the vote, even in a single precinct, let alone a state, let alone in the nation. And so we published a report recently,'s it's been well and widely received. But our target audience, David, was really just a fraction of the of the conservatives who believe that the election was stolen. was stolen. We're hoping, we hope to peel those people away from this utter nonsense that President Trump actually won the election in a landslide, to use his words. I think that is a great place to end this conversation. Judge Ludig, thank you so much

for joining us and for all of your time this morning. We appreciate it. We appreciate all the stuff that you're writing and saying and doing on the Electoral Count Act. And we will be watching as the House introduces their version as these compromises move forward. And hopefully something gets signed into law, certainly before 2024. But I'd like it done well before then. Thank you. It's been my honor to be on with the two of you. Thank you, Judge. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame,

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My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off,

plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. So Sarah, the judge has spoken and it seems like from his perspective, the electoral count act reform is about as good as he thinks we're going to get through this imperfect process of democratic compromise. What do you think? I have lots of thoughts. So first, I think he's a little bit wrong on it's as good as we're going to get. I think there's some parts of this that are great, as in they're not just compromises.

I think I disagree a little on the 20% versus 50%. I think 20% is perfect. I don't think you want it to be 50% because I think because we live in this equilibrium two-party system, 50% turns into a partisan game. 20% actually means that people will have to still think about their vote individually. Anyway, so that type of thing I really like. I am still very torn on the

structural constitutional analysis at the end of the day. Do you want courts resolving this question or do you want Congress resolving this question? And there's a few reasons for that. Obviously, there's the institution of the court getting dragged into close elections, which hasn't turned out particularly well. But there's also the problem of trying to solve January 6th, which frankly, we shouldn't be trying to solve. January 6th already happened. The question now is getting the super smart people in a room and saying, what are all the other scenarios and what's the best thing we can come up with that could address those? And generally speaking, that's going to be sort of a philosophical structure, not a rifle shot situation. So again, I think saying that the governor's slate of electors

is the presumptive slate of electors, which takes the Electoral Count Act and just makes that part more clear without the 19 commas and 237 words to say it. I think structurally that's probably right versus, for instance, the state legislature or something else. On the one hand, governors are one person. On the other hand, that one person wins a statewide election. They tend to be pretty serious people. You know, it's always easy to point out the exception of why this won't work. So, for instance, one of the criticisms has been, okay, but what if Doug Mastriano wins the governorship in Pennsylvania and then he just certifies a Trump slate no matter

what? Yep. That's why it matters who we elect. You know, like that's why Democrats shouldn't have spent millions of dollars propping up his primary win. But also presumptive slate is not necessarily than the accepted slate. Of course, that's what that 20% threshold is for. And that's why, at least in this version of the bill,

it would then get thrown on a fast track with a three-judge panel, potentially directed to the Supreme Court. I think that's all about right. I don't know what I would change in it at this point. What did you think, David? I think, how should I say this with appropriate nuance and sophistication?

If we do not pass this, we're lunatics. So now I don't mean that we can't tweak this part of it or that part of it. But what I like about it is it exists. It's got a lot of bipartisan support. Look, I agree with you completely. We can't sit there and just say, okay, our goal is to prevent another January 6th because next time it'll be something different. I think what you do is you say, the goal is to make the law clear, to make it more difficult for corrupt people to achieve corrupt purposes, and to just, let's be frank, get rid of that 809 word

paragraph, single paragraph monstrosity that is the Electoral Count Act. But a single act of Congress can't, for instance, prevent a corrupt person from doing corrupt things. Right. That's why we, as the electorate, have actually a very high responsibility and civic duty to vote for not corrupt people. And then you build a system that hopes to rein in those impulses, create incentives not to be a POS. But at the end of the day,

if someone corrupt becomes president and then there's a corrupt Senate and House, I mean, yeah, the Constitution doesn't save you from that. Yeah, you can't corruption-proof the political process. You can just make it harder for corrupt people to be corrupt. I mean, that's what this does. And the thing that I also like about it is the expedited judicial review so that you've got, you know, you're going to have immediate federal court opportunity to get in federal court. You're going to have fast tracks to the Supreme Court.

So that even if you do have a Mastriano-type character in the governor's mansion in Pennsylvania, he's not going to have carte blanche. There's still going to be legal hurdles he's going to have to surmount. Again, you can't firewall away all of his corruption. You can just make it more difficult. And the thing that's so sobering that I thought Judge Ludig did a good job of describing was how under the current Electoral Count Act, as of right now, a majority of the House and Senate can just go ahead and overturn an election under the Electoral Count Act.

They can just flip it around. They can overturn it. This dramatically restricts that kind of discretion. And so I think it's just an absolute no-brainer. The Mark Elias critique, I mean, come on, man. Come on, man. To quote the President of the United States, come on, man. It seems to me to be, and what's going to be interesting to me, Sarah, is what will the final votes be? As of right now, there's nine Republicans

that have signed on to this publicly, one short of the filibuster-proof majority. I'm optimistic we'll cross that threshold, but I'm not certain. That's why I think I might have to do a newsletter tomorrow in the spirit of the newsletter I wrote all the way back on January 4th that says stop screwing around and reform the Electoral Count Act

and say something like, don't be idiots, vote for the Electoral Count Act reform. Well, we still need a House version that we're waiting on, and that'll be interesting to see how far apart those are. And that could either in some ways fast track it getting past or really slow it down in my view and what's funny is that one way that it could get really slowed down is if the house version is very good if that makes sense if you end up with two totally reasonable versions of how to do this and then it's like well but my version's a little bit more reasonable than your version. It should be 25% instead of 20%.

Right. And then we sit there and spend six months, you know, until we get to 22% or something. That would be a waste of everyone's great efforts here. Because again, David, as you said, this something is far, far better than nothing. Oh, so much better. Which is rarely the case with legislation. And yet, here we are. It's a rare and wonderful thing to see,

so let's not squander it. Including Nancy Pelosi, don't listen to voices in your caucus saying, oh no, it's not enough to just reform the Electoral Count Act. We also have to reform voting in general throughout the United States of America. You've tried that already. You took your shot with H.R. 1. It didn't pass. It's not going to pass. Now focus on the thing that can

pass. Because quite literally, I don't know that we would see a direct replay of January 6th, but until this Electoral Count Act reform is passed, we're going to have January 6th adjacent possibilities. I think the absolute most important thing is to raise the threshold for objections because I think we will see one member of each House of Congress object forever. Yes. House of Congress object forever. Because if your person loses, this

is now going to happen on either side. If Trump wins the election fair and square in 2024, 20% of Democrats, I think, would probably object regardless. So let's at least make it 20% on that. Although, again, I think 50% actually, oddly, could have

a backfiring effect. Yeah, that's an interesting thought. That's an interesting thought. You've intrigued me, Sarah. You've intrigued me. But I'm great with 20%. It is so much better. It is so much better.

I have a treat for you for our next episode this week. Okay. I just want to leave this term with you because I'm guessing you haven't spent a lot of time studying it. You ready? You ready for the term? Yeah. Corpus linguistics. Yes, you're correct.

I don't know what that is. It's what we're doing this week. Get excited. Amazing. Okay, I'm going to learn something. I'm going to have to do a little research before we get started. Otherwise, I'll just be sitting there watching you talk about it with our guest. We're going to bring on a relatively new student of Corpus Linguistics.

He happens to be a member of Article 3. I think this will be a treat. Yeah. No, I'm looking forward to it. I always like to learn on our own podcast. Yeah, absolutely. So tune in next Thursday for Corpus Linguistics. I'm thinking it has something to do with dead bodies.

Sure. That's not at all what that means. No, it's not Corpsus Linguistics. It's not at all what that means. No, it's not corpses linguistics. It's corpus. Okay. But tune in Thursday for corpus linguistics and other things. And other things. And thank you for listening today.

Please rate us. Please subscribe. Please check out thedispatch.com, as I said. And as I said, we'll be back Thursday morning. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over,

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