Politico's The never-before-told backstory of Pence's Jan. 6 argument begins:

Former judge J. Michael Luttig shares the story of the run-up to the insurrection, and why he thinks it’s time to reform the Electoral Count Act.

It details several phone calls and a series of tweets from a newly started twitter account by the former and well respected conservative judge that were quickly cited by former US Vice President Mike Pence as to why he could not overturn the results of a presidential election.

But the article fails to detail in any way "why he thinks it’s time to reform the Electoral Count Act of 1887 (ECA)". Is it possible to locate those arguments and summarize them?

At the end of Ex-Judge who played key role in Trump-Pence feud speaks out for first time CNN's Justice Correspondent Jessica Schneider says:

And Judge Luttig is now looking to 2024; he's pushing congress to rewrite the Electoral Count Act, to make it clear that the Vice President can not overturn the election results, and to clarify that Congress has no power at all to decide the validity of state electors.

  • 2
    My guess would be that it's for the same reasons Vasan Kesavan is quoted as arguing for the ECA's unconstitutionality on your wiki link. Namely that it allows Congress to subvert and ignore the will of the people and decide the President (in the House) and Vice President (in the Senate) themselves. A Congress fully controlled by Party X could unilaterally deny anyone not of their party the Presidency, regardless of how the popular votes went. Though I have no idea if those were Luttig's arguments. Commented Feb 19, 2022 at 2:00
  • 2
    @TedWrigley “All we can really do is…” presents a false choice, there’s also finding and quoting what he’s articulated or been quoted as saying, right? I won’t be opening this up to opinions.
    – uhoh
    Commented Feb 19, 2022 at 11:20
  • 2
    @uhoh: Ah, yeah, that's true. i'd just assumed from the context of the article that this is not something he'd engaged in (formal or informal) public discussion about. He sent a text message; he spoke with Pence by phone... But maybe there's some place he discusses it elsewhere. Commented Feb 19, 2022 at 15:56
  • 1
    @TedWrigley I've added the CNN quote "he's pushing congress to rewrite the Electoral Count Act" apparently reporters are seeing something the rest of us haven't, at least not yet. Presumably "pushing congress" to change or update laws will involve the expression of arguments, and I don't think their content will be classified or top-secret, so I think this should be answerable soon if not already.
    – uhoh
    Commented Feb 19, 2022 at 23:41
  • 1
    For reference, the part of the ECA which is probably relevant in this context is 3 USC 15. At the very least, it could do with some paragraph breaks and simplified sentence structures; in its current form, reading it is quite a slog.
    – Kevin
    Commented Feb 20, 2022 at 0:00

1 Answer 1


Luttig had an opinion piece in the New York Times last week. The opening of the second paragraph explains that the act's vagueness provides an opening for congress to reject the results of an election even if there is no evidence of impropriety:

The convoluted language in the law gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not “lawfully certified” or “regularly given” — vague and undefined terms — regardless of whether there is proof of illegal vote tampering. After the 2020 election, Republican senators like Ted Cruz of Texas and Josh Hawley of Missouri tried to capitalize on those ambiguities in the law to do Mr. Trump’s bidding, mounting a case for overturning the results in some Biden-won states on little more than a wish.

The bulk of the piece examines reasons for changing the law in light of the political philosophies of both major parties and concludes that both parties should support reforming the act.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .