Will Congress fix the dangerous, outdated law that aided Trump’s coup attempt? Well, maybe
The resurgence of white supremacy and violent insurrection has a way of making the Civil War and its aftermath seem more present than they have in generations. So it’s fitting that Congress is struggling to fix a misbegotten statute that dates to that period but somehow, after a century and a half, still determines how we fill the nation’s highest office.
The disputed presidential election of November 1876 was a mess that Congress couldn’t resolve until the following March, just two days before inauguration. That was when an ad hoc commission created just to settle the matter awarded the presidency to Republican Rutherford B. Hayes, the decisive popular vote loser, in an unsavory trade-off that ended Reconstruction to mollify Democrats.
Congress’ Electoral Count Act was a necessary but by most accounts botched attempt to preclude a repeat of the unpleasantness by clarifying the presidential vote certification procedures laid out in the 12th Amendment, itself an early attempt to fix the Constitution’s rickety Electoral College. The 1887 law was “complex and clumsy,” the political scientist John Burgess wrote the following year, calling parts of it “confused, almost unintelligible” and “of very questionable wisdom.” The intervening years haven’t improved its reputation: The National Task Force on Election Crises concluded in 2020 that the 19th-century law “undoubtedly needs to be revised.”
Soon thereafter, it was the complex and confused Electoral Count Act that Southern California lawyer John Eastman proposed exploiting to overturn the election. The law’s provision for state legislatures to choose electors not determined by elections encouraged Trump and company to push for slates of phony electors to challenge those legitimately chosen by voters. Its low threshold for congressional challenges to the results, requiring only a single member of each chamber, allowed a small contingent of extremist senators to throw certification into doubt. And the vice president’s vaguely defined ceremonial role gave Eastman and Trump an opening to pressure Mike Pence to unilaterally invalidate votes, ultimately backed by a bloodthirsty mob.
To be clear, Eastman and Trump were taking liberties with the law and, according to the analysis of a federal judge, likely committed crimes. But the law is ambiguous enough that Pence, for example, reportedly went so far as to consult a fellow Indiana Republican and former veep, Dan Quayle, as to whether he could do what the boss wanted.
If we’re interested in ensuring that future presidential elections don’t hinge on the vestigial rectitude of current and former vice presidents, it wouldn’t hurt to have a fully functional federal law on the subject. Fortunately, a bipartisan group of senators has at long last drafted a reasonable attempt that clarifies the vice president’s role, requires a fifth of each chamber to question electoral votes and limits the opportunities for states to designate fake electors.
Unfortunately, the group behind the Electoral Count Reform Act includes only nine Republicans, which is one short of the number that would be needed to prevent a filibuster from blocking the legislation. Given that the entire effort to undo American democracy has emanated from the Republican Party — and that at least two members of the narrow Democratic majority apparently believe the filibuster is more important than anything else, including democracy — no one should be sanguine about this effort yet.
The multitude of threats to the nation’s democracy, including but not limited to partisan gerrymandering, voter suppression and the Electoral College itself, means repairing the clunky legal machinery by which we certify presidential elections would only begin to shore up the weaknesses that have become blindingly evident in recent years. One could be tempted to say it’s the least lawmakers could do — if not for the dismaying prospect that they might do less.