USA TODAY International Edition
Trump exposes democracy flaws
Vote challenge will fail — this time
You’ve got to give credit where credit is due. President Donald Trump is sparking the biggest reexamination of the nuts and bolts of our democracy since the Constitutional Convention in 1787. How many of us had contemplated the ins and outs of the Vacancies Act or the proper scope of presidential power during a national emergency before Trump came along? Unfortunately, all this is missing some of the dignity of the original discussion, and we’ve ended up with a sort of tabloid version of The Federalist Papers in which those of us concerned about American institutions don’t so much engage in learned debate as frantically attempt to head off the next pending scandal.
Which brings us to the Electoral Count Act of 1887. The ECA governs how Electoral College votes are counted. In short, during a joint session of Congress, the vice president opens the envelopes containing each state’s Electoral College votes and hands them to two tellers from the House and two tellers from the Senate, who read the votes aloud. Once all the votes have been read, the tellers add them up and announce the result. In 2013, the entire process took 23 minutes.
2 challenges in 133 years
The ECA also includes procedures for challenging Electoral College votes. A challenge requires the support of at least one senator and at least one House member. The House and Senate then convene separately to debate and vote on the challenge. In order to be successful, the challenge must be upheld by both chambers.
In the 133 years since the ECA was adopted, electoral votes have been challenged exactly twice: Once in 1969, which involved a challenge to an elector who was supposed to vote for Richard Nixon but voted for George Wallace instead, and once in 2005, when Sen. Barbara Boxer, D- Calif., and Rep. Stephanie Tubbs Jones, D- Ohio, joined to challenge Ohio’s presidential electors. In both cases, these challenges were rejected by both the House and the Senate. In the case of the 2005 challenge, which is the closest we’ve come to the situation we’re facing Wednesday, the challenge was rejected 267- 31 in the House and 74- 1 in the Senate.
Blueprint for an overthrow
Trump’s efforts to overturn the 2020 election are far more serious. Based on their public statements, at least a dozen senators and 140 House members will vote to reject Electoral College votes from various swing states. That shouldn’t happen, and wouldn’t if these congressional Republicans followed the terms of the ECA.
All the election results have been certified, all the legal challenges have been resolved and all the Electoral College votes cast, certified by the governors and sent to the Archivist of the United States — just as the statute requires. Trump’s grossly inappropriate and probably criminal last- minute attempt to get the Georgia secretary of state to “find” 11,780 votes and “recalculate” the results wouldn’t change these facts even if it were successful.
And none of that matters. If congressional members vote to reject valid presidential electors for invalid reasons, there’s nothing anyone can do about it. The ugly truth is that, despite a nationwide vote fenced with elaborate legal and technical safeguards, the U. S. president is elected on the honor system by 535 members of Congress.
The House is controlled by Democrats and in the Senate, Republican Mitch McConnell, the majority leader, is trying to discourage the move, though his objections appear to be tactical rather than principled. At least four Senate Republicans have pledged to uphold the election result: Mitt Romney of Utah, Lisa Murkowski of Alaska, Pat Toomey of Pennsylvania and Ben Sasse of Nebraska.
Trump’s effort to interfere with the Electoral College count is going to fail — this time. Still, this tawdry episode is dangerous because it provides a blueprint for the next time. And there will be a next time because it’s now clear that under the system of counting Electoral College votes, a party that controls both chambers of Congress can install its candidate as president regardless of the election results if its members have the political will to do so.
Integrity is not the norm
Too many of the guardrails of democracy are little more than white lines painted on the road that depend on a sense of honor, duty and integrity that is simply no longer the norm. Republican senators and representatives who vote to uphold a challenge Wednesday will be putting their fear of Trump and his supporters ahead of their duty to the country. That’s shameful and unworthy, but that’s our political world.
Our system of checks and balances is inadequate for the challenges we face, and it isn’t just the Electoral Count Act that needs updating and strengthening. The Guardrails of Democracy Project has identified dozens of cracks and holes in our constitutional infrastructure that require urgent repair. Don’t let Trump’s buffoonery lull you into a false sense of security. The next time some authoritarian wannabe takes a run at the Constitution, he’ll be playing for keeps.