Jim Hartman
Courtesy Photo
On the January 6 Capitol riot anniversary, righteous indignation was expressed at the disgraceful behavior of a mob of Donald Trump supporters invading the building in which Congress was meeting to certify the election of President Joe Biden.
Democrats keep saying January 6 must never happen again, but their main goal seems to be to use the memory of that day against Republicans in 2022. And, too many Republicans minimize what happened.
The riot was a disgrace. Members of both parties should join now in a bipartisan fix to the law that encouraged Trump supporters to think Congress could overturn the 2020 election.
That effort resulted from ambiguities in the Electoral Count Act of 1887. It purports to allow a majority of Congress to disqualify a state’s electors after the Electoral College has voted.
The Electoral Count Act was an attempt to sort out the mess following the contested Hayes-Tilden election in 1876, but its muddled, vague language and outdated provisions has made it open to abuse.
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 — count the electoral votes that have been cast by any state as authorized under state law.
Congress’ certification of presidential election results should be a technicality, but Trump misled supporters into believing Vice President Mike Pence and Congress could overturn Biden’s victory. That resulted in the Jan. 6 march on the Capitol.
The challenge failed only after an unprecedented 8 GOP senators and 139 representatives voted to sustain one or both objections to Arizona’s and Pennsylvania’s electoral votes. Pence correctly understood his limited constitutional role and heroically resisted Trump’s pressure to intervene.
Jan. 6 was the most significant abuse of the Electoral Count Act to date, but it’s part of a growing trend. Starting with George W. Bush’s victory in the 2000 presidential election, Democrats contested election results 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, in the wake of Bush’s re-election, Democrats were more aggressive. California Sen. Barbara Boxer joined an Ohio House Democrat to object to that state’s electoral votes, even though Bush won Ohio by more than 118,000 votes.
That effort failed, but 31 House Democrats and Boxer in the Senate voted to reject Ohio’s electoral votes.
In January 2017, after Trump’s victory, Democrats once again challenged the election outcome. Democrats cited “the confirmed and illegal activities engaged in by the government of Russia.” Objections were made against the votes in at least nine states.
To his credit, Vice President Joe Biden rejected each objection on procedural grounds, stating that “there is no debate” and “it’s over.”
New statutory language needs to clarify that once legal challenges are over and the Electoral College votes, Congress can’t change the outcome. Disputes in the states would be settled in the states with the judiciary as the best forum for resolution.
Fixing the Electoral Count Act is urgently needed to avoid a constitutional crisis. In these polarized times, both parties could use the law in the future as an excuse to overturn an election in the House and Senate. Now is the time to act – before the 2024 election.
Electoral Count Act reform is gaining bipartisan support from a broad coalition of lawmakers, ranging from Congress’ most conservative members to leading House Democrats.
An expanding bipartisan group of 12 Senate members are working together to rewrite the law, Sen. Mitt Romney (R-Utah) reports.
Most agree on two core changes: raising the threshold for objection beyond a single senator and representative, and clarifying the vice president’s role as merely ceremonial.
Election reform begins with fixing the flawed 1887 Electoral Count Act.
Email Jim Hartman at lawdocman1@aol.com.
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