FOR MUCH of the previous yr, Democrats in Congress have fitfully and unsuccessfully pushed varied bits of voting-rights laws. Whatever the deserves of those payments, they’re an odd first response to the rebel of January sixth 2021. Record numbers of Americans voted in 2020. Long queues and pandemic-driven confusion however, the issue was not entry to the poll, it was the tried chicanery with the counting. The Electoral Count Act of 1887 (ECA), which tries to set pointers for the way Congress settles disputed leads to presidential elections, is imprecise, complicated, probably unconstitutional—and ripe for reform.
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To perceive what the ECA does, it helps to know America’s byzantine technique of electing a chief government. When Americans solid a vote for president, they’re truly voting for a slate of electors who will themselves vote for that candidate on the electoral-college assembly. Article II of the structure explains that every state will get the identical variety of electors because it has members of the House and Senate, that states ship licensed election outcomes to Congress, and that in a full joint session of Congress the president of the Senate (who can also be the vice-president) will “open all the Certificates, and the Votes shall then be counted”. If no candidate reaches a majority of electoral-college votes, then the House chooses the president, with every state’s delegation getting a single vote.
The ECA was meant to be a information for resolving disputes. It permits legislators to formally object to particular person outcomes or complete states’ slates, offered every objection is signed by a minimum of one senator and consultant. If majorities in each chambers uphold the objection, the votes in query should not counted. It additionally establishes a “safe harbour” deadline, establishing that so long as states resolve any disputed outcomes a minimum of six days earlier than the electoral faculty votes, then these outcomes are “conclusive” and Congress should depend them.
But the ECA leaves a lot unsure, together with the grounds on which members of Congress can object, the function of courts in settling disputes and whether or not the vice-president has any discretion within the vote-counting course of. Worse, it lets Congress reject legitimate votes. All that has to occur is for states to offer competing slates of electors (as urged by John Eastman, a lawyer advising Donald Trump within the denouement of the 2020 election) and for a majority of each chambers of Congress to again the choice slates. Congress, moderately than the American folks, might thus choose the president. The structure’s creators rejected letting the legislature choose the chief—but when Republicans management each chambers of Congress in 2024, in addition to the governorships of sufficient essential swing states, and a situation just like 2020 emerges once more, it will be unwise to depend on precept and fealty to the founders prevailing over bare-knuckled realpolitik.
Many on the precise are additionally involved about ECA abuse. If Republicans can vote to reject outcomes they dislike over unfounded allegations of fraud, Democrats might in concept do the identical over issues about racially biased election practices. Some libertarian-minded authorized students argue that the ECA itself—particularly, the provisions that permit Congress to reject slates of voters—is unconstitutional, as a result of Article II offers no mechanism for rejection.
By permitting federal legislators to impose their preferences, the ECA weakens state management over elections, which Republicans have historically defended. In 2020 Marco Rubio, a Republican senator from Florida, proposed extending the ECA’s safe-harbour deadline. John Thune and Mitch McConnell, the highest two Republican senators, have expressed openness to reforming the ECA. Some Democrats see this provide as a ruse to weaken help for voting rights, which it could be—however one with a worthwhile outcome. ■
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This article appeared within the United States part of the print version beneath the headline “Who counts wins”