The Jan. 6, 2021 Capitol riot was a disgrace. The mob of Trump supporters was incited by the vagueness and inadequacy of the Electoral Count Act of 1887. They falsely believed Vice President Mike Pence and Congress could overturn the 2020 election. The act is an antiquated, muddled, potentially unconstitutional law with outdated provisions enacted 10 years after several states submitted competing slates of electoral votes during the disputed Reconstruction-era election of 1876.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, in the wake of Bush’s re-election, Democrats were more aggressive. Thirty-two Democrats voted to reject Ohio’s electoral votes, despite Bush winning the state by 118,000 votes. In January 2017, after Donald Trump’s victory, Democrats again challenged the election 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, 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 Jan. 6 assault on the Capitol. Pence correctly understood his limited constitutional role. He heroically resisted Trump’s unrelenting pressure to intervene. Now, a bipartisan group of 16 senators (nine Republicans and seven Democrats), led by Republican Susan Collins and Democrat Joe Manchin, has introduced legislation to overhaul the Electoral Count Act to stop future electoral mischief. The bill’s first provision clarifies the vice president’s role in counting Electoral College votes as “solely ministerial.” It sustains Pence’s conclusion he had no lawful authority to block the votes. The legislation requires the governor of each state certify the state’s slate of electors making it harder to create competing sets of electors from a state. Current law permits one senator and one representative to formally object to a state’s submission. Lawmakers must then debate the question and vote whether to reject the Electoral College slate. Under the reform, objections would need the support from a fifth of the House (87) and Senate (20). Unfortunately, the bill would continue to allow Congress to raise objections that an elector’s vote wasn’t “regularly given,” which is the same nebulous term Congress has abused for 20 years. The bipartisan bill would expedite lawsuits over electoral votes. A discontented presidential candidate could get an immediate hearing from a three-judge panel, with appeals going directly to the Supreme Court. The best outcome would be full repeal of the ECA, but Congress is unlikely to remove itself entirely from election certification. The Founders’ original intent was a separation of powers. They didn’t want Congress choosing the president. The courts are better suited to sort out disputes over election law and votes. The Collins-Manchin bill isn’t perfect, but it deals narrowly with the most obvious problem. Democrats wanted a bill filled with extraneous provisions to stop “voter suppression.” Republican negotiators successfully resisted. On Aug. 3, the Senate Rules Committee chaired by Democratic Sen. Amy Klobuchar will hold a hearing on the bill. There’s hope the legislation can be passed by January 2023. Reforming the Electoral Count Act to avoid a repeat of the Jan. 6 disaster in 2024 is imperative – now. Email Jim Hartman at lawdocman1@aol.com.
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