Jan. 6, 2021, underscored our election system’s vulnerabilities
Three years after the Jan. 6, 2021, U.S. Capitol riot, it remains at the forefront of political debate (argument, actually) and multiple court cases. For many, the riot is simply about bad actors trying to overturn a legitimate presidential election. But the violence of that day harbors a deeper institutional lesson. The Jan. 6 riot and other keep-Trump-in-office schemes were enabled by a flawed election system that can be manipulated for nefarious ends.
The irony of the Jan. 6 riot is that the country’s founders created the presidential election system to prevent such an uprising. As Alexander Hamilton explained in Federalist 68, empowering electors to choose a president rather than voters was designed to block “tumult and disorder” and a “cabal” from hijacking the presidency.
Why didn’t our institutions work as the founders intended during 20202021? The short answer is that electing a president is now more democratic than the Founders’ aristocratic vision of wise electors voting independently for a president. And the democratic rules adopted to allow voters a greater role in choosing a president sit uneasily atop the founders’ aristocratic system. This democratic/aristocratic hybrid makes presidential elections overly complex and liable to abuse.
Consider that in most democratic countries, presidents are elected directly by citizens. It’s a simple process that ends when votes are counted. Electing a president in the U.S., in contrast, is complex and drawn-out, running from early November to Jan. 6. It involves counting and certifying popular and electoral votes by states and Congress. Each stage of counting and certification presents opportunities for bad actors to throw sand in the electoral machinery’s gears.
State legislatures could try to override voters. A bill proposed in the Arizona state legislature in 2022, for example, would have allowed the legislature to “accept or reject the election results” by calling a special session.
Under the Constitution, state legislatures also have the power to choose electors in any manner. A hyper-partisan legislature, therefore, could choose electors who might circumvent the voters’ choice. Electors are expected to vote for the candidate who wins the popular vote in their state, and most states require, via statute, that they follow through, but electors still might choose to rebel. Consider the three Washington State electors who ignored the voter’s choice and voted against Hillary Clinton in
2016, for example. Their case reached the U.S. Supreme Court, which ruled that states “may enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President,” adding that “electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.” But the three electors were merely fined $1,000 apiece, a penalty that is too light to matter much. So far, such rogue electors — known as “faithless electors” — have never changed the outcome of an election. But is it only a matter of time?
The real vote for president happens not in November when we go to the polls, but in mid-December, when electors meet and cast their votes. Even so, the validity of those votes may be questioned. In 1876, three states sent conflicting electors to Washington, D.C., which threw the election in dispute and left it to Congress to sort out 20 contested Electoral College votes. In 2020 seven swing states recruited fake electors to sign and certify electoral votes claiming Donald Trump had won their states, not Joe Biden. The votes were sent to the National Archives, where they were ignored, but still helped to feed the rigged-election narrative put forward by Trump supporters. Those phony votes today are at the core of the third criminal case filed against Trump, claiming he sought to reverse the results of the 2020 election even before the scheduled certification process that in 2021 devolved into rioting.
Typically, electoral votes are counted and certified by a joint session of Congress on Jan. 6. Three incidents in 2021 came close to derailing what is normally a pro forma exercise. First, rioters stormed the Capital to halt the certification of Joe Biden as the winner. Second, 147 members of Congress voted to reject the electoral votes of several swing states, despite no evidence of fraud or irregularities. Third, then-President Trump reportedly (and unsuccessfully) pressured Vice President Mike Pence, who presided over the certification, to either reject electoral votes or halt the counting.
Because of Trump’s alleged actions connected to the Jan. 6, 2021, insurrection, his eligibility to appear on the presidential primary ballot is being challenged in several states, including Colorado and Maine, which have barred him from their ballots. Trump is appealing those decisions, which are, of course, further undermining the integrity of the U.S. election system by fueling conspiracy theories and claims of tampering.
Our process seems to be the Rube Goldberg machine of presidential election systems: too complex for its straightforward task. And when institutions are too complex for their purpose, they are at risk for abuse by persons of ill intent. That’s the real lesson of the Jan. 6 riot.