At a time when legislatures across the country are re-evaluating their electoral laws and the legislature tries to stop changes that lead to greater restrictions on the ballot box, it is imperative that certain parts of the electoral framework are reformed to avoid uncertainty in the future. elections.
The events of January 6 on Capitol Hill have forever marked American electoral history, but some think they could have been prevented if the election law was not ambiguous and outdated. Photo: The Washinton Post.
The nightmare is easy to describe, because it was about to happen. One party loses a bitter presidential election but maintains control of Congress. He challenges the electoral college tally, refusing to accept the results in key states, citing irregularities that could not be fully investigated. One won the presidential election; but the other is sworn in and becomes president.
Since November 2020 there has been a frenzy in several states to change electoral laws and a national campaign for a liberal reform package, the “For the People Act”. But until very recently, there hasn’t been much debate about the Electoral Count Act (ECA); the convoluted and potentially unconstitutional law of 1887 that sets deadlines for the electoral certification process and allows members of Congress to object to total vote counts for any reason.
“The Voter Counting Law itself is infamously complex, opaque and inscrutable,” said Rep. Jamie Raskin, D-Maryland, a liberal and constitutional lawyer who has campaigned against the electoral college itself for years. “And it would be quite a task to start trying to reform it, because there is a lot of inertia in action and multiple traps hidden in it.”
It’s a remarkable response to a law that has few, if any, advocates. The ECA was written as a cleanup effort after three consecutive presidential elections in which the outcome depended on just one state. The disastrous 1876 election is very famous, but in 1884, a margin of just 1,149 votes in New York sent Grover Cleveland to the White House. The electoral college is a creation of the Constitution, and debates over whether it should continue to exist – or if it should be modified – have been drowned in partisanship and debates about the influence of “smaller states.” However, the ECA is only a law, and it can be repealed if Congress so decides.
Why should anyone try it? As intricate as the presidential election certification process is, the ECA is a combination of strict deadlines that can complicate closed elections and ways to change election results, whether they were even or not. Last year, Sen. Marco Rubio (R-Florida) tried to address that issue, proposing an extension to the December 8 deadline – the date known as the “safe harbor” – the date by which all objections to the vote counting within states must be resolved.
“We should give states the flexibility to provide additional time for local election officials so they can count each and every vote, extending the states’ federal ‘safe haven’ limit from Dec. 8 through Dec. 1. January, ”Rubio wrote. His proposal did not find co-promoters and has not been presented in this Congress. His office did not respond when asked why, but the fact that the Trump campaign continued its efforts to reverse the election after Dec. 8 shows how inappropriate the “safe haven” application was.
After January 6, when Democrats accused Republicans who objected to Biden’s victory of subversion and even treason, Republicans quickly responded that they did it first. “Every Republican president in the last three terms has been rejected by Democrats,” said the second-highest Republican in the House of Representatives, Steve Scalise of Louisiana, when asked why the majority of Republicans in the House were questioning the victory of Biden’s electors in Arizona and Pennsylvania. Some Republicans went a little further, noting that even if the voters of those states were stolen from Biden, that would not have stopped him from becoming president, as he had more than 270 electoral college votes without those states. In 2005, Sen. California’s Barbara Boxer had objected to the 2004 Republican victory in Ohio to “make voter suppression evident,” not to change the results. So what was the difference?
The argument was that the objections defined by the ECA did not make any sense – but not that Congress should stop doing what did not make sense. Trump and his allies believed something different – that the law was not nonsense, and that objections could be used to deny Biden the presidency, if only Vice President Mike Pence had seconded them.
“We cannot turn around the fraudulent election that was stolen from us the people,” said radio host and author Eric Metaxas at the conservative conference known as the “Faith & Freedom Coalition” near Orlando. He made reference to the fact that Pence did not have the authority to change the results: “If Mike Pence had done what perhaps he could have done, he would be elected President of the United States.”
Democrats and anti-Trump conservatives are increasingly concerned about that attitude. In promoting the Law For the People, the president’s party has pointed out that Republican officials from the states that certified Biden’s victory have been excluded or challenged in primary elections: for this reason, they say, it is necessary that the government federal assumes control of the situation. But the ECA is not really part of the discussion. There was no serious conversation about including it in the People’s Law, which was introduced by Democrats two years ago. The law is so confusing, and so rarely relevant, that it has never emerged as a target for criticism.
“Updating the Voter Counting Law would be a great addition to that bill,” said Aaron Scherb, director of legislative affairs at Common Cause, a group of government best practices that was instrumental in advancing the Law For the People. . “Because presidential elections only happen every four years, there is a kind of natural ebb and flow of issues that people pay attention to or problems that arise.”
Parallel to the efforts of all Republicans to block the Democrats’ main electoral restructuring package, there is indifference around the ECA. Election scholars have filled the gap, arguing that a simple tweak – like raising the requirement for an objection to be successful to something like a two-thirds majority to reject state voters, rather than a simple majority – would end up with something. out of confusion and fantasies that something in the country’s electoral code allows a legitimate result to be thrown out.
“Lawmakers just don’t have it in mind, but it should be part of a broader reform package that was focused on preventing electoral subversion,” said Rick Hasen, a professor at the University of California at Irvine, who warned ahead of the election. that the system was vulnerable to tampering. “People are focused on putting out the fire in front of them, and this is not a fire right now. But that’s why this is the ideal time to act. We are far from the next presidential elections. You cannot predict that the change will help one candidate or another ”.
David Weigel is a national policy correspondent covering Congress and grassroots political movements. He is the author of “The Show That Never Ends” (“The Show That Never Ends”), a story about progressive rock.
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