The Electoral Act is both a legal monstrosity and a fascinating puzzle.
Intended to settle disputes over how America elects its presidents, the 135-year-old law has arguably done the opposite. Last year, the poorly written and ambiguous text enticed Donald Trump to try to undo Joe Biden’s victory, using a fringe legal theory that rejected his own vice president.
Scholars say the law remains a ticking time bomb. And with Trump in mind, members of Congress in both parties now agree that solving them before the 2024 election is a matter of national urgency.
“If people don’t trust elections as a fair way to transfer power, what’s left?” said Senator Angus King, a Maine independent who led the reform effort. “I would say January 6 is a harbinger.”
‘Unrefreshing’ origin
The origin of the Electoral Count Act is, as King put it, “unappetizing.”
More than a decade passed between the contested election that sparked it and its passing in 1887. Under the deal that ended that dispute, Republican nominee, Rutherford B. Hayes, voted to withdraw federal troops from the occupied south, effectively ending the rebuilding and launch. the Jim Crow era.
The law itself is a morass of archaic and confusing language. One particularly mind-boggling sentence in Section 15 — which outlines what to do when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.
Amy Lynn Hess, the author of a grammar textbook on sentence diagramming, told us that mapping that one sentence alone would take about six hours and require a large piece of paper.
“It’s one of the most confusing pieces of legislation I’ve ever read,” King told us. “It’s impossible to figure out exactly what they were up to.”
King has been working to fix the Election Count Act since the spring, when he first raised the alarm about its flaws. His office has become a center of expertise in this field.
“Coincidentally, I have a Ph.D. on my staff,” said King. “And when I instructed him to start working on this, it was heavenly for him.”
Last week, King and two Democratic colleagues, Senators Amy Klobuchar of Minnesota and Dick Durbin of Illinois, introduced a draft debate bill to address the bill’s key weaknesses.
King said he hopes it will serve as “a head start” for more than a dozen senators in both parties who have gathered to draft their own legislation.
A leader of that effort, West Virginia Senator Joe Manchin III, a Democrat, promised Sunday that a reform bill would be passed “absolutely.” Senator Lisa Murkowski, an Alaska Republican, said lawmakers were taking “the Goldilocks approach” — as in “we’re going to try and find what’s just right.”
But it won’t be easy to find a compromise that will satisfy both the progressive Democrats and the 10 Republican senators needed for passage in the Senate. Disagreements have already sprung up over the role federal courts should play in settling electoral disputes within states, according to people close to the talks.
mr. Worst-Case Scenario
Few have studied the Electoral Count Act more obsessively than Matthew Seligman, a fellow at Yale Law School.
In an exhaustive 100-page paper, he went through almost every combination of scenarios for how the law could be abused by partisans bent on pushing its limits to the limit. And what he discovered shocked him.
“The underexposed weaknesses are so profound that they could lead to an even more explosive conflict in 2024 and beyond, fueled by increasingly aggressive political polarization and constitutional hardball,” Seligman warns.
For example, he found that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the results of the presidential election and the party that legitimately won would have been powerless to stop it.”
Seligman has not published his paper for more than five years, fearing it could be used for malicious purposes. He is particularly concerned about what he calls the “governor’s tie,” a loophole in the existing law that, if misused, could spark a constitutional crisis.
Suppose on January 6, 2025 — the next time the Electoral Count Act goes into effect — Republicans control the House of Representatives and the governorship of Georgia.
Seligman conjures up a hypothetical but plausible scenario: The Secretary of State declares that President Biden has won the popular vote in the state. But Governor David Perdue, who has said he believes the 2020 election was stolen, declares there was “fraud” and instead presents some Trump voters to Congress. Then the House, led by Speaker Kevin McCarthy, declares Trump the winner.
Even if the Democrats controlled the Senate and turned down Perdue’s roster, it wouldn’t matter, Seligman said. Due to the quirks of the Electoral Count Act, the 16 votes of Georgia’s electoral college would go for Trump.
“When you’re in this age of pervasive mistrust, you start running through all these rabbit holes,” said Richard H. Pildes, a professor in New York University’s School of Law. “We’ve never had to chase so many rabbit holes before.”
Now for the hard part
According to half a dozen experts who have studied the matter, the easiest part in enacting the Electoral Count Act would be figuring out how Congress would accept the states’ results.
There is broad agreement on three points for doing so:
Extension of the Safe Harbor deadline, the date by which all challenges to a state’s election results must be completed.
Clarifying that the Vice President’s role on Jan. 6 is purely “ministerial”, meaning that the Vice President only opens the envelopes and does not have the power to reject voters.
Increasing the number of members of Congress needed to object to a state’s voters; currently, one legislator from each chamber is enough to do this.
The more difficult part is figuring out how to clarify the process for how states choose their voters in the first place. And that’s where things get tricky.
The states that decide presidential elections are often closely divided. Perhaps one party controls the legislature while another owns the governor’s mansion or the secretary of state’s office. And while each state has its own rules for resolving electoral disputes, it’s not always clear what needs to be done.
In Michigan, for example, a recruiting committee made up of an equal number of Republicans and Democrats confirms the state’s election results. What if they can’t come to a decision? That almost happened in 2020, until a Republican member broke with his party and declared Biden the winner.
Progressive Democrats will want more aggressive provisions to prevent attempts in Republican-led states to undermine results. Republicans will fear a slippery slope and try to keep the bill as narrow as possible.
King’s solution was to clarify the process for federal courts to settle disputes between, say, a governor and a secretary of state, and to require states to resolve their internal disagreements by the federal “safe harbor date,” which he would push back to December 20. instead of the current date of December 8.
The political obstacles are also formidable. Still reeling from their inability to pass federal voting rights legislation, many Democrats are suspicious of Republicans’ motives. It’s entirely possible that Democrats will decide it’s better to do nothing, because passing a bipartisan bill to enact the Electoral Count Act would allow Mitch McConnell, the minority leader of the Republican Senate, portrayed as the savior of American democracy.
Representative Zoe Lofgren, a California Democrat who heads the Committee on House Administration, has been working with Representative Liz Cheney, the Republican from Wyoming, on a bipartisan house law. But she stressed that their ambitions are quite limited.
“We have made it clear that this is not a replacement for the voting rights law,” Lofgren told us. “The fact that the Senate failed to do so should not be an excuse for not doing something modest.”
What to read tonight?
Jill Biden, the first lady, told community college leaders that her effort to provide two years of free community college is not in Democrats’ social spending bill, Katie Rogers reports.
Republican campaigns have their attacks on Dr. Anthony S. Fauci intensified, a trend Sheryl Gay Stolberg described as representative of “the deep schism in the country, distrust of government and a brewing populist grudge against the elites, all exacerbated by the pandemic.”
Peter Thiel is stepping down from the board of Meta, according to parent company Facebook. Ryan Mac and Mike Isaac learn that Thiel, who has become one of the Republican Party’s biggest backers, wants to focus his energies on the midterms instead.
Chief Justice John G. Roberts joined the three Liberal members’ dissent against a Supreme Court order to restore an Alabama congressional map. A lower court had ruled that the card violated the Voting Rights Act, reports Adam Liptak.
STATES
Voting right push goes local
Arizona, as we have noted, has become a hotly contested battleground, and the two parties have continually clashed over the rules governing how elections can and should be conducted. Just last week, the Republican speaker of the State House spat in a bill that would have allowed lawmakers to reject election results it didn’t like.
A new voting initiative led by Arizonans for Fair Elections, a not-for-profit advocacy group, would do the opposite: expand voter registration, expand early voting, and guard against partisan purges of voter rolls, along with a host of other changes that groups on the left have. long wanted.
It would essentially overturn an existing law that had been litigated all the way to the Supreme Court last year, resulting in a 6-3 decision in favor of the Republican Attorney General. Arizonans for Fair Elections expects to announce its plans on Tuesday.
The move comes at a time of frustration for voting attorneys, whose push for legislation to implement similar changes at the federal level has hit a wall of Republican opposition.
Will the local approach do better? A citizens’ initiative passed in 2000 created Arizona’s Independent Commission for Realignment, so there’s a precedent. To get on the ballot this year, the group must collect 237,645 valid signatures by July 7.
“Our legislature has spent years trying to eliminate voting rights,” said Joel Edman, a spokesperson for the initiative. “We are at an important moment for our democracy.”
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