Republicans too scared of Trump to fix election laws

Mike Pence chairing the January 6 joint session of Congress governed by the Electoral Count Act of 1887.
Photo: Saul Loeb – Pool / Getty Images

After the chaos of the 2020 presidential election, you hope the one thing Democrats and Republicans would agree on is the need to clarify the laws that allowed for its messy conclusion. The joint session of Congress of January 6 which was the occasion of an insurrection, several deaths and a quasi-constitutional crisis illustrated the inadequacies linked to the statute which governed it: the Electoral Count Act of 1887, the little noticed (before this year) and a much criticized statute put in place after the contested presidential election of 1876.

The ECA has unclear (for example, the precise role of the vice-president who chairs the joint session that counts electoral votes and confirms election results), illogical and pernicious (for example, the low threshold for launching an election). contesting the electoral vote, and the implicit opening to competing electoral lists), or simply archaic (the state certification procedures for electoral votes developed at the time when votes were literally stored in safes and physically transferred to Washington before being known).

There is nothing particularly partisan about the idea circulating in academic circles to clean up the 1887 law before its next rollout in 2024. And indeed, a range of conservative opinion leaders (including National exam(Dan McClaughlin, Walter Olson of the Cato Institute and Ramesh Ponnuru of Bloomberg View) urged support for common sense reforms. Perhaps most notably, the Republican electoral lawyer par excellence Ben Ginsberg argued this week that the fuzzy law may not work to the advantage of GOP candidates in the near future:

Republicans should be in favor of clarifying the system now, if only they won’t be in a strong position like they were in 2020.

To begin with, a Democratic Vice President will preside over the Senate when the Electoral College votes open. Suppose Trump runs again and wins. Now, suppose Vice President Harris thinks Trump’s re-election poses an existential threat to the county and does what Trump couldn’t persuade Mike Pence to do …

Neither party should think that it can play with the system using the ECA. In fact, of all people, Donald Trump should realize that what happens happens a lot. What seems advantageous in an electoral context often creates unintended consequences down the road.

Despite such warnings, ECA reform bill languishes in Congress due to lack of support from GOP, like New York Time reported earlier this week. Now is a good time to wonder why Republicans in Congress don’t seem interested (for now) in this urgent project. Aspiring reformers face three challenges:

As I understand it, there have been quiet discussions with Senate Republicans for months about setting the law. But the arguments in favor of doing something before 2024 have been made public primarily as the House Select Committee’s plan to investigate the attack on the U.S. Capitol. The creation of this committee, of course, was fiercely opposed by most Republicans in the House, and you can’t imagine many GOP supporters reacting with anything other than contempt for the members of Congress cited in the recent Time report as calling for a reform of the Court of Auditors:

“There are a few of us on the committee who are working to identify proposed reforms that could win support across the spectrum from liberal to conservative constitutional academics,” said Representative Adam B. Schiff, Democrat of California and Jan. 6 member. Committee. “We could very well have a problem in a future election that boils down to a very poorly drafted, ambiguous and confusing interpretation of a law.”

Rep. Liz Cheney, Republican from Wyoming and vice-chair of the committee, said Thursday that “the 1887 electoral count act is directly at issue” and that the panel would recommend changes.

It is not known whether the majority of Republicans hate Schiff or Cheney more fiercely.

More generally, Republicans from both houses of Congress and the party base would be anxious to “move on” from January 6, shifting the focus instead to the alleged bad governance of Joe Biden and the Democrats in Congress. You can’t talk about the correction of the Electoral Tally Law without talking about what happened on January 6.

Trump’s official attitude toward the Electoral Count Act was forcefully expressed by Trump adviser John Eastman, whose infamous memos laid out a strategy for an electoral coup in the fateful days leading up to the 6th. January. According to Eastman, the law is unconstitutional on two distinct points. land. First, he asserted, his provisions on the counting of electoral votes violate the unconditional granting of the 12th Amendment to the vice president to handle electoral votes as he wishes. Second, Eastman echoed the repeated arguments of Trump’s lawyers that the ECA’s state certification procedures violate the absolute and exclusive power of state legislatures to regulate both federal elections and the choice of presidential voters in under Article I of the Constitution.

It seems unlikely that the president who once said: “I have an article II, where I have the right to do whatever I want as president”, will have the beginning of a clue concerning the arguments. constitutional rights of its own lawyers. Nonetheless, the radical argument for the unconditional powers of the vice president and state legislatures that Eastman has made is the official MAGA gospel. The first argument will likely be dropped by Republicans in 2025 if there is a contested election, as Kamala Harris will sit in the same seat occupied by treacherous Mike Pence in 2021. But the second argument, that state legislatures controlled by the Republicans can override governors, election officials and even voters to determine election results might still be at stake.

As long as the Republican Party remains in the grip of Donald Trump and resigned to its likely plans for a 2024 return, its elected officials may be reluctant to do so. whatever clarify electoral procedures. Despite all the mostly specious arguments the 45th President and his allies made before and after the 2020 election about voter fraud and “Democratic theft,” his real strategy was to cast doubt on the integrity of the government. process. He wanted to make last November’s and upcoming elections a test of partisan will, and he succeeded to a terrifying extent. Will he now dismiss all of this hard-earned doubt by supporting a clarification of a key part of the presidential electoral machinery?

Perhaps Trump will surprise us by at least staying out of the way of efforts to reform the voter count law. Or perhaps the Republicans in Congress will invoke a desire to correct the 1887 statute with the reasonable expectation that the subject matter is too obscure and technical to arouse MAGA’s suspicion. But time is running out, if not running out, to deal with anything in the highly controversial arena of election and election laws. A little selfless patriotism on the part of members of Congress from both parties is in order, but it is unlikely to be present.

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