Talking Points

Congress sets out to prevent a replay of the Capitol riot

One year ago this Thursday, President Donald Trump attempted to prevent the certification of Joe Biden's victory in the 2020 election by exploiting ambiguities in the 1887 Electoral Count Act. Thankfully, Senate Democrats have set out to reform the act — and senior Senate Republicans have begun to signal that they might be willing to join the effort. That's excellent news, because reforming the ECA is important, and doing so on a bipartisan basis is the best way of all to accomplish it.

What's the problem with the ECA? For one thing, it permits states to appoint new electors if an election has "failed" (with failure defined very vaguely). It also gives members of Congress an open-ended power to object to electors. And, finally, it fails to specify precisely the vice president's role in counting electoral votes. These ambiguities weren't a problem for most of the past 135 years, because no one in our politics sought to exploit them. But Trump, encouraged by advisers like right-wing lawyer John Eastman, did. The result was the destabilizing chaos and confusion of last Jan. 6.

A recent Washington Post op-ed authored by four constitutional scholars with a wide range of ideological commitments proposes several ECA reforms. To begin with, the authors argue, Congress should disavow any power to question the validity of any state's electoral votes "on the ground that there was something wrong with the popular vote upon which those electors were appointed."

Then there are cases in which a state submits conflicting slates of electors (which hasn't happened since 1876). Congress should attempt to avoid this eventuality by "incentiviz[ing] states to identify in advance which institution is entitled to speak for its voters. If states do this, then Congress only has to count the electoral votes sent from the designated part of the state's government." Congress should also stipulate a clear procedure in advance to resolve disputes in cases where a state government has failed to specify which office or institution gets to make the final call.

Would any of these reforms guarantee the peaceful transfer of presidential power going forward? Not at all. That's because the ultimate source of the violence and constitutional chaos last Jan. 6 was the weaponization of public opinion by a president seeking to keep himself in power despite losing a free and fair election. If sufficient numbers of Americans on either side of our partisan divides can be persuaded by a skilled demagogue that the rules are systematically rigged against them, nothing can prevent them from disregarding those rules and demanding justice by other (extra-legal or extra-constitutional) means. 

That said, the best way to minimize the system's vulnerability to mischief is to clarify the rules — and to do so on the broadest possible basis. Which is why the news of bipartisan momentum on Capitol Hill to do exactly that with the ECA is so welcome and encouraging.