How can the United States avoid the political chaos and near constitutional crisis that followed the last presidential election in future elections?
One way would be for the loser to accept defeat graciously and, for the good of the country, not interfere with the peaceful transfer of power. However, given Donald Trump’s refusal to follow the historic code of conduct for the defeated, and the willingness of many of his supporters to storm the U.S. Capitol, we can no longer be as confident in that precedent.
Another way is for Congress to make clear its own responsibilities when certifying the election results by updating and clarifying the Electoral Count Act of 1887.
Trump used ambiguities in the law to try to convince Vice President Mike Pence that he should not recognize electoral votes for Joe Biden from certain states or delay the certification. Pence maintained that he did not have the authority to do that, and he certified the results.
Trump was wrong, but scholars agree that the law is poorly written and ripe for misinterpretation. Therefore, Congress must clean it up.
The House of Representatives passed their reform bill last week, which was co-sponsored by Republican Liz Cheney and Democrat Joe Lofgren. However, only Cheney and eight other Republicans voted for the bill 229-203. All three of West Virginia’s Republican Representatives voted against the bill.
“Democrats’ disdain for President Trump has clouded their judgement and guides their extreme actions,” said West Virginia Congressman Alex Mooney. Representative Carol Miller said the bill would strip states of their responsibility to conduct elections and federalize the process.
Actually, the bill does just the opposite.
The House bill, and similar legislation in the Senate, are crafted to ensure that Congress cannot go rogue and start picking and choosing different slates of electors depending upon their political preference. The House bill says a state’s electoral votes “shall be accepted as conclusive” only if submitted by state’s Governor.
Additionally, the Vice President’s role as the presiding officer is “ministerial.” The House bill makes clear the Vice President has no authority to “determine or otherwise resolve disputes concerning the proper list of electors for a state.”
The legislation still allows for members of Congress to raise objections, but the threshold is much higher. Currently, one member of the House and one from the Senate can force Congress into debating the results. The House bill would require objections from one-third of the members of each chamber. The Senate bill requires signatures from one-fifth of the members.
The Senate bill, which will be taken up by the Rules and Administration Committee today, may have a better chance of Congressional approval because it has bipartisan support. Democratic Senator Joe Manchin and Republican Senator Susan Collins are the lead sponsors. Senator Shelley Moore Capito is one of eleven Senate Republicans backing the bill.
The turmoil that followed the 2020 election, which culminated in the January 6 insurrection, has shaken the very core of the republic. The continuation of democracy depends upon the legitimacy of elections and the orderly transfer of power. Congress must take this opportunity to clarify the Electoral Count Act to ensure that those objectives are met and that politicians are not able to pervert the process just because their candidate did not win.