With the 117th Congress sprinting to adjournment on Jan. 3, there’s fear reform of the Electoral Count Act will not get done in this lame-duck session.
Congress must not miss the opportunity – which might not come again – to forestall a repeat of what happened on Jan. 6, 2021.
The mob of Trump supporters was incited, in part, by the vagueness and inadequacy of the Electoral Count Act of 1887.
The act is poorly drafted and virtually unintelligible. It’s antiquated, muddled provisions were enacted 10 years after several states submitted competing slates of electoral votes during the disputed Tilden-Hayes Reconstruction-era election of 1876.
It produced no controversy for the next 30 presidential elections.
The Constitution is clear that state legislatures have the power to certify electoral votes, according to the popular vote in each state. Congress has one job – counting the electoral votes cast by any state as authorized under state law.
However, starting with George W. Bush’s victory in the 2000 election, Democrats contested election results in Congress after every Republican win.
In January 2001, a handful of House Democrats objected to counting Florida’s electoral votes, characterizing them as “fraudulent.”
In January 2005, after Bush’s re-election, Democrats were more aggressive. Thirty-two Democrats voted to reject Ohio’s electoral votes, despite Bush winning Ohio by 118,000 votes.
In January 2017, after Donald Trump’s victory, Democrats again challenged the outcome. Democrats cited “the confirmed and illegal activities engaged in by the Russian government.” Objections were made against the electoral votes in nine states.
To his credit, then-Vice President Joe Biden rejected each objection on procedural grounds.
In January 2021, an unprecedented 147 Republicans voted to sustain objections to Arizona’s and Pennsylvania’s electoral votes.
Congress’ certification of presidential election results should be a technicality. President Trump misled his supporters into believing Vice President Pence and Congress could overturn Biden’s victory. The result was the assault on the Capitol.
Pence correctly understood his limited constitutional role. He heroically resisted Trump’s unrelenting pressure to intervene.
In July, a bipartisan group of senators, led by Susan Collins (R-Maine) and Joe Manchin (D-W.Va.), introduced legislation to overhaul the Electoral Count Act to stop future mischief.
On the House side, a broader bill was drafted which included extraneous provisions to stop “voter suppression” wanted by Democrats. That version of ECA reform passed the House with unanimous Democratic support, but only nine Republican votes.
Meanwhile on Sept. 27, the Senate Rules and Administration Committee sent a slightly amended version of the original bipartisan Senate bill to the floor on a 14-1 vote (Sen. Ted Cruz dissenting).
This bill now has 37 Senate co-sponsors – 22 Democrats and 15 Republicans – including both Democratic Leader Charles Schumer and Republican Leader Mitch McConnell.
The bill would accomplish three objectives:
• Eliminate the ambiguous and undefined “failed election” provision in the ECA which has produced hyper-partisan shenanigans;
• Require each state’s executive certify a slate of electors by a date certain; and
• Make clear the vice president’s ministerial role, confined to opening envelopes containing the certified electors and presiding over the count.
In addition, the Senate bill provides an expedited judicial review process for challenged certifications before they are deemed conclusive.
It also raises the threshold for a congressional challenge from a single member in each chamber to one-fifth of the House (87) and Senate (20), and narrows the grounds on which such objections can be lodged.
This matter is urgent. Donald Trump has expressed strong opposition to ECA reform and passage in the GOP-majority House next year is uncertain.
House Democrats need to accept the Senate bill and Schumer must insist the bill be the version supported by at least 10 Republicans, required for passage under Senate rules.
Failure to act means the 2024 presidential election would be governed by the same flawed law that caused havoc in 2020.
E-mail Jim Hartman at firstname.lastname@example.org.