Clarity now can prevent a constitutional crisis later.
Clarity now can prevent a constitutional crisis later.
M ona Charen argues at the Bulwark that Democrats should focus their energies away from the doomed H.R. 1 and the John Lewis Act, and push for revisions to the Electoral Count Act (ECA). Ed Kilgore in New York magazine makes a similar case for revising the ECA. Not all of Charen’s suggestions are well-considered, but the project of revising the ECA to head off potential problems in 2024 is worthwhile.
The Problem
The combination of Donald Trump’s two-month temper tantrum after the election and the Capitol riot have been a gift to Democrats, allowing them to craft a narrative of democracy being imperiled by Republicans. They have retailed that narrative as a basis for passing H.R. 1 and the John Lewis Voting Rights Advancement Act, but as Charen correctly notes, neither of those bills has anything to do with preventing the specific misconduct by Trump that was so troubling in 2020: pressuring state legislatures, state officials, Congress, and the vice president to override popular-vote victories for Joe Biden in Georgia, Arizona, Wisconsin, Pennsylvania, Michigan, Nevada, and even New Mexico.
In 2020, the system worked. No Republican legislature or governor actually tried to submit alternative electors. Mike Pence rejected Trump’s pressure to overstep his authority and reject the certification of Biden electors. Congress batted away all the objections. Three-quarters of Senate Republicans, and a third of House Republicans, opposed those objections, and many of those who went along did so only because they knew the effort was a cynical fraud doomed to fail.
If the Republican candidate in 2024 is not Donald Trump, it is extraordinarily unlikely that there will be a Republican repetition of the post-election effort to overturn popularly selected electors. If the Democratic candidate is Joe Biden, it is similarly unlikely that Biden would take that step. As little courage as Biden has shown in standing up to the enemies of norms and institutions in his party, that is one Rubicon that I trust him not to cross.
But it is sensible to prepare for the worst. Trump might be the nominee again, and if so, he is likely to lose at the ballot box and refuse again to accept defeat. Even if Trump’s influence in the party is already visibly declining in other ways, too many Republicans already sided with him last time, and too many still fear to cross him on his claim that the election was stolen. That pressure will only intensify if he is nominated again. Moreover, the Democratic nominee in 2024 might be someone more openly contemptuous of rules and norms than Biden is, such as, say, Kamala Harris. And even if neither party provokes a crisis in 2024, we do not know what will come down the road. It is better to fix your umbrella while the sun is still shining. Congress spent a decade working on avoiding a repetition of the crisis of 1876, resulting in the ECA’s passage in 1887. It has served us well for over a century, but its convoluted language could use some updating in order to eliminate some of the arguments that were made in 2020.
The Proposed Solutions
Consider Charen’s five main arguments:
The power of the vice president: Charen argues that the ECA should clarify “that the vice-president’s role is purely ceremonial.” That goes a little too far; somebody has to preside over the proceedings to decide preliminary questions such as which speakers to recognize and when objections are procedurally proper to hear (all matters on which the vice president can, of course, be overruled by the House and Senate). But as I detailed at the time, and as Pence properly recognized, his authority went no further than that. So, a revision of the ECA can and should add clarifying language to that effect: The vice president has no power to decide which electors to count, and the power of decision rests exclusively with Congress.
Resolving conflicts: Charen argues that the ECA should be amended so “that only electoral votes certified by individual states will be counted.” Again, this overstates things. We do need a process by which someone — and Congress is still that someone — resolves disputes when a state sends multiple conflicting slates of electors, perhaps due to conflicts between different arms of state government or (as also happened in Hawaii in 1960) between an outgoing governor and a new governor sworn in at the start of January. There is also a need to decide what happens when no slate of electors is certified. The ECA already addresses these issues, and it just needs to be clearer.
Supermajority vote: Charen argues that “a supermajority should be required to decertify any state’s electoral votes, not just a simple majority as the law now permits.” I agree; a two-thirds majority would be appropriate in this setting. As is true of impeachment, a congressional vote to invalidate a slate of electors is a sufficiently drastic step that it should not be done on a party-line vote in a closely divided Congress.
Of course, this would be an extra-constitutional rule, which raises some of the long-standing questions about whether the ECA is constitutional at all, but if we assume that Congress has the power to legislate a process, then it follows that Congress can — as it presently does with the filibuster and reconciliation rules — decide how many votes are required to pass that process.
Some argue that raising the bar for overturning slates of electors just encourages stunt objections, but stunts are less harmful than actually overturning a democratic vote. And that brings us to the next issue.
The objection process: Charen also argues that “the threshold for objections to state electoral vote counts should be much higher than two.” Ultimately, if you need at least a majority to decide a challenge, that’s the issue, not the threshold for forcing a vote on the record. That said, the Capitol riot illustrates the danger of holding out hope to partisans that Congress is about to consider an objection to the election on a specified date and time in a specified place. Requiring more support to be gathered in Congress before bringing objections to the floor would reduce the incidence of that.
Failed elections: This is the most complicated piece. Charen argues that the ECA “should be amended to eliminate the ‘failed election’ section that empowers legislatures to substitute their preference for that of the voters.” Now, as I explained in depth in December, this is already a narrow provision; if a state governor has certified a single slate of electors, the ECA’s “safe harbor” provision treats that slate as “conclusive.” There are two separate pitfalls here. The first is in how the safe harbor (in 3 U.S.C. § 5) interacts with the provision on Congress resolving disputes (in 3 U.S.C. § 15). Here is the key language:
No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified . . . shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given . . .
The pro-objections argument (made by some Trump supporters in 2020) takes a broad reading of the term “regularly given” to allow Congress to ignore those single, certified slates even when a state complies with the safe harbor (as every state but Wisconsin did in 2020), if there were some “irregularity” in how the election was conducted.
Now, as was apparent to the Congress of 1887, there is something to be said for keeping Congress as a last line of defense against an egregious case of state misconduct. Today, the principal remedy for grave, provable voter fraud or voter suppression would come in the state or federal courts. The ECA should be amended to clarify that Congress must treat a certified slate of electors as “regularly given” if an argument to the contrary could have been presented to a court (whether or not it was). It should additionally specify what grounds exist for finding that electoral votes were not “regularly given,” the most obvious being bribery or extortion of the electors. That said, the best defense against abuse of this provision is the supermajority requirement itself.
As to the rule that allows a state legislature to choose substitute electors after a popular vote was held, what the ECA says, codified at 3 U.S.C. § 2, is as follows:
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
Now, it should take a very, very high bar for a state legislature to pick electors if the state actually already held a popular vote and there exists some workable method of figuring out who legitimately won it. (A state still has the power to choose electors by the legislature instead of holding a popular vote, and while it may be prudent to eliminate that power as well, nobody has tried it since 1876.) Here, too, states that chose in advance to hold a popular vote should be barred from claiming that they “failed to make a choice” simply on the basis of challenging the integrity of their own elections, so long as some contest procedure exists by which the courts can resolve those arguments.
Consider three situations in which there might still be a need for Section 2:
- There is proof of massive fraud in an election greatly exceeding the margin of victory, but in such a way that a court is unable to determine who fairly won. In nonpresidential elections, this sometimes happens and results in a court ordering a new election — but because that cannot be done in time when a state election is part of the national election, Section 2 allows for the state legislature to prevent the entire state from being disenfranchised.
- There is proof of massive, unlawful voter suppression. Unlike voter fraud, in which illegal votes can be identified and removed from the tally, it is infeasible to concretely determine who people would have voted for if they were improperly barred from voting. This was very much a concern in the 1876 election. Again, the legislature may act as a fallback.
- There is some event — such as a terrorist attack or a natural disaster — that prevents an election from being completed on Election Day. On September 11, 2001, for example, I and many other New Yorkers voted in the mayoral primary in the morning, but the polls were closed the rest of the day, and the votes were thrown out. In that case, New York rescheduled the election, but that will sometimes not be possible in a presidential election even if Congress convenes swiftly to permit it.
In short, Section 2 still serves a purpose, just one that — like other parts of the ECA — should be clarified to limit its scope.