Congress owes U.S. reform of Electoral College
The mood was tense on the floor of the U.S. Senate on that dreary January day. Grave expressions on the faces of lawmakers deeply divided along partisan lines reflected the uncertainty of the moment. The gallery above them was standing-room-only. Generals looked on, as did House members, ambassadors from abroad and a former president. It was more than two months beyond the presidential election, three weeks into the new year, and the United States still could not declare a presidential victor.
As the New York Times reported, a senator from Indiana spoke for nearly an hour, reminding his fellow lawmakers “that there was great uneasiness in the public mind to have the presidential election settled.” The newspaper added, “Other senators went further than this, and believed that the country was threatened with violence and disorder if a settlement was not speedily had.”
The not-so-speedy settlement eventually declared Republican Rutherford B. Hayes the winner over his Democratic opponent, Samuel J. Tilden, even though Hayes had lost the popular vote. This, the nation's second Electoral College debacle, had tied the nation in knots exactly a century after its founding. (The first had occurred in 1800, when Thomas Jefferson and Aaron Burr tied with 73 electoral votes each, throwing the race to the U.S. House of Representatives, which chose Jefferson.)
Determined to avoid a third such debacle, lawmakers approved the Electoral Count Act of 1887. Seeking to clarify constitutional requirements for counting electoral votes and trying to codify dealing with states that submitted competing slates of electors, Congress basically made a mess of it.
One hundred thirty-three years later, a rogue president running for reelection sought to use the ambiguities baked into the act to stay in office. Despite losing both the popular vote and the electoral count, President Donald Trump and his followers relied on spurious interpretations of the Electoral Count Act to thwart the will of the people. On Jan. 6, 2021, they came close to succeeding.
In response to Trump's dangerous scheming, a bipartisan group of lawmakers has taken up the challenge their predecessors flubbed long ago. Led by Sens. Joe Manchin, D-W.Va., and Susan Collins, R-Maine, they're working to clarify once and for all procedures for how the Electoral College vote should be counted and how challenges to the vote should be handled.
Although bipartisan agreement on anything in this Congress is never assured, big names have voiced their support. Senate Minority Leader Mitch McConnell said the Electoral College Act “obviously has some flaws. And it's worth, I think, discussing.” Senate Rules Committee Chair Amy Klobuchar of Minnesota and Senate Whip Dick Durbin of Illinois are involved in drafting legislation.
Minority Whip Jim Thune, R-N.D., said some GOP senators are open to narrowing the grounds on which Congress or the vice president can change the election results submitted by states. Currently it takes just one member of the Senate and House to raise an objection to electoral votes, something the reforms are likely to seek to change. In addition, a bipartisan group of attorneys convened by the American Law Institute has suggested such challenges be limited to specific “constitutional requirements” such as qualification for electors and the deadlines by which they have to vote.
In regard to the vice president's role in the procedure, the hangman's noose that insurrectionists prepared for Vice President Mike Pence would be forever unknotted, so to speak. The VP's part would be clearly and explicitly ceremonial (sort of like Hollywood celebrities opening the envelope to announce an Oscar winner).
The lawyers' group is also urging Congress to clarify that the slate of electors sent by any state must reflect the results of the election, and that state legislatures may not intervene after an election and change the results.
These reforms are the least that Americans are owed by the current Congress. Just a year ago, Democrats were hoping to pass comprehensive voting reform legislation, including proposals to safeguard voting access, eliminate gerrymandering and protect the security of the vote. When two of their own — Sens. Kyrsten Sinema of Arizona and Manchin — added their weight to a unanimous Republican caucus, the voting-reform vessel foundered.
Electoral count reform doesn't take away the sting of that defeat, or lessen the need for broader voting reforms. But it is, as The Atlantic put it recently, “the bad deal Democrats should take.” It very well may be needed to prevent a replay of 2020.
With the twice-impeached former president the overwhelming GOP frontrunner if he decides to seek reelection in 2024, “great uneasiness in the public mind” already prevails. Reforming the Electoral Count Act won't thwart every election scheme Trump and his followers might concoct if he were to lose, but at least it's a start.
Democrats should make a deal to repair gaping holes that Trump exposed.