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Republican elections lawyer calls for reform to the Electoral Count Act

ARI SHAPIRO, HOST:

Donald Trump unsuccessfully tried to overturn the will of the people in the 2020 presidential election, and now a prominent Republican lawyer is warning that the losing candidate in 2024 might be more successful. Ben Ginsberg is a veteran elections attorney who has represented many Republican candidates, and his warning comes in an article for the National Review. Ben Ginsberg, good to have you back on ALL THINGS CONSIDERED.

BEN GINSBERG: Thanks, Ari. Nice to be here.

SHAPIRO: You warned that Congress needs to change the Electoral Count Act, which spells out how Congress calculates the Electoral College vote. Why is that a pressure point in the small D democratic process that you're worried about?

GINSBERG: If in any future election there are contested slates of electors and it is a close election, the Electoral Count Act governs the procedures that Congress uses to sort that out. And it is a muddled, antiquated law that if it was ever put under a stress test would absolutely wilt simply because nobody on the left or the right can really understand what it means.

SHAPIRO: So you're arguing that lawmakers should bring some clarity to the law, and Democrats have talked about doing that. The New York Times reports that they have no Republican support. Why do you think that is?

GINSBERG: Well, I don't believe it's over the merits of the Electoral Count Act. I think the atmosphere in Congress is poisonous on many fronts and probably none more so than because of the way the Democrats tried to push through their For The People Act. And while that was a bill with many meritorious components to it, it was also a wily political operatives' wishlist for Democratic control. And so Republicans, I think, were right to block it. But it has truly poisoned the well in Congress.

SHAPIRO: That's one interpretation. Another is that Republicans are in thrall to Donald Trump and that the vagaries of the Electoral Count Act might help Donald Trump in 2024. Do you think that could be part of it?

GINSBERG: Well, if they think that, I think it's a miscalculation, which is what I tried to point out in the article. Because even if it was to be such a close election in 2024, it would be different. For starters, there would be a Democratic vice president, Kamala Harris, sitting in the chair, not Mike Pence. Suppose Democratic vice president saw Donald Trump's inauguration as an existential threat to the country and was actually persuaded to do what Mike Pence wouldn't do. It's also true that in a future election, there's no way to know now who's going to be in control of Congress, what the party's relative strengths will be.

SHAPIRO: So you're arguing that Republicans should support your proposal because a losing Democrat could try to claim victory in a future election. Why isn't it enough to say Republicans should get on board because strengthening American democracy and protecting the integrity of the vote is a cause that everybody should support, no matter their party?

GINSBERG: Well, I think that's a good point. But, of course, that's not where the political realities are today in our deeply divided country.

SHAPIRO: Are you saying that the political reality today is that winning at any cost has become the goal, no matter what it means for American democracy?

GINSBERG: Well, I think that there is an unfortunate strain of that. I think there is a lot of unintended consequences that will come to pass by the attempts to sort of rig the system in favor of one party or another. The point simply is you never know what the future may hold. And so the best policy for the country across party lines is to clarify a law that is so muddled, imprecise and ambiguous that if ever put to a stress test, it would fail.

SHAPIRO: Is reforming this one law - the Electoral Count Act - enough, given everything that we're seeing happen at the state level in legislatures across the U.S.? Is there more that needs to be done to protect American democracy?

GINSBERG: Oh, there's certainly more that needs to be done to protect American democracy. The Electoral Count Act deals with the process of sorting through the Electoral College. It does not go to what voters are actually seeing and doing on the ground. And many of the threats we're seeing today to American democracy come because of laws trying to place barriers to voting for people - because of laws put into place that threaten election officials for not bending to the will of one party, laws we see around the country where partisans want to take over the final counting of votes from election professionals, potentially tilting the playing field to their own party. And, of course, the great unintended consequence through that is that if an election is taken over by politicians who ignore the vote of the people to help their own side, then they will not be able to govern themselves because such a sizable percentage of our polarized country will be absolutely up in arms, more up in arms than even the Trump forces are today.

SHAPIRO: That's attorney Ben Ginsberg. His piece in the National Review is headlined "Republicans In Congress Should Update The Electoral Count Act Before It's Too Late." Thank you for talking with us.

GINSBERG: Thank you. Transcript provided by NPR, Copyright NPR.

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Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
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Casey Morell (he/him) is an associate producer/director of All Things Considered.