To stabilize democracy, Congress must reform the way it counts electoral votes

Lawless as it was, the mob attack on the Capitol accompanied an attempt to validate thenpresident Donald Trump’s bogus fraud claims through ostensibly legal means. Seizing on vague language in an 1887 law governing Congress’s counting of electoral votes, Republicans such as Sens. Ted Cruz (Texas) and Josh Hawley (Mo.) sought to reject slates from states Trump contested — even though their validity was not in real dispute. This was supposedly necessary so Congress could investigate “potential fraud and election irregularities and enact election integrity measures,” as Hawley put it. In reality, the maneuver would have opened the door to the overturning of the 2020 presidential election, and future ones, by a partisan majority of Congress, whereupon “our democracy would enter a death spiral.”

Those latter words were spoken on Jan. 6, 2021 — not by some alarmist Biden partisan, but then-senate Majority Leader Mitch Mcconnell, R-KY. A solid majority of the Senate, Democrats and Republicans, agreed. What’s still overdue is corresponding legislative action: Congress should reform the 1887 law, known as the Electoral Count Act (ECA), before it’s used to justify more subversion of democracy.

The key is to clarify that the states, not Congress, are the ultimate arbiters of their elections for presidential electors, and that the electoral votes they send to Washington will be unquestionably counted except for rare problems such as a constitutionally ineligible elector. Congress should specifically renounce any authority to re-examine the popular vote that produced a state’s otherwise undisputed electors — i.e., the authority Cruz and Hawley would have usurped a year ago. This was the original intent of the Electoral Count Act, enacted to obviate any more congressionally-improvised commissions such as the one that settled the 1876-1877 Hayes-tilden dispute.

Buttressing that reform should be others, such as stipulating that the vice president has no power to accept or reject votes while presiding over the count — as another, even more spurious, attempted Trumpworld legal theory had it. Indeed, then-vice President Mike Pence’s refusal to wield this nonexistent power led to death threats from the mob.

The prospect of bipartisan reform has indeed dimmed in the past year. Republicans, especially in the House — where more than 100 GOP members voted not to certify Biden’s election — have shamefully made Trump’s lies the party line. Along with much other history, Republicans seem to have forgotten that Democrats, too, have lodged dubious objections against GOP presidents-elect, citing the ECA — albeit ineffectually and in tiny numbers. A party committed to peaceful alternation in power of the people’s chosen leaders would presumably recognize its own interest in barring such mischief.

There is still hope in the Senate, where Majority Leader Chuck Schumer, D-N.Y., has — understandably — put broader voting rights bills first in line. When and if a real opportunity to work with the GOP on a narrow ECA fix arises, Schumer should take it. All senators, except for eight Republicans, voted to certify Biden’s election a year ago. Surely this consensus in favor of stability and democracy can somehow be revived. For the sake of this country’s institutions, it must be.

The key is to clarify that the states, not Congress, are the ultimate arbiters of their elections for presidential electors, and that the electoral votes they send to Washington will be unquestionably counted except for rare problems such as a constitutionally ineligible elector.