The mob that attacked the Capitol on Jan. 6 had a very specific goal. It wanted to pressure Vice President Mike Pence into delaying the certification of President Joe Biden’s electoral victory by exploiting ambiguities in the Electoral Count Act of 1887.
Pence, to his credit, resisted this pressure, but the danger of a future vice president being less principled remains. Yet Democratic leaders are refusing to work with Republicans to fix this loophole.
In 1876, right before the end of Reconstruction, the Southern states of Florida, Louisiana, and South Carolina all had Republican-controlled electoral boards that were empowered to disallow what they deemed fraudulent votes and certify final vote counts. So even though the local press reported that Democrat Sam Tilden had won the most votes in each state, each state board certified Republican Rutherford Hayes as the winner.
But the House of Representatives was solidly under Democratic control, and it threatened to reject each of these disputed slates of electors, thus giving Tilden a 184-165-vote win in the Electoral College. A one-time compromise was finally reached before Inauguration Day whereby 20 votes would be awarded to Hayes in exchange for Hayes agreeing to end Reconstruction.
Ten years later, Congress passed the Electoral Count Act to clarify that Congress only had a very narrow role in counting Electoral College votes. Congress was to defer to each state in how it selected its electors, only intervening if a governor certified competing slates. Congress was absolutely not to become a national elections board, entertaining claims of fraud or irregularities in each state.
Unfortunately, that is exactly what Democrats tried to make it, first in 2000, then in 2004, and then again in 2016. Those Republicans who objected to certain state electors on Jan. 6, 2020, were only following in the footsteps of those Democrats.
That doesn’t make any of their objections less wrong, but it means the ambiguity in the law needs to be resolved.
The Electoral Count Act needs to be reformed so it is made crystal clear, in up-to-date language, that states should set the rules for determining their electors before Election Day and that once a state’s electors are certified by the governor, no one in Congress has any power to question those results.
There is bipartisan support for exactly such a reform in Congress, but Senate Majority Leader Chuck Schumer and the Democratic superlawyer behind the Steele dossier hoax are fighting to prevent these bipartisan reforms.
“Some Republicans are starting to float the idea of fixing the Electoral Count Act instead of enacting Freedom to Vote/John Lewis Voting Rights,” Steele dossier funder Marc Elias tweeted this month. “Don’t fall for it.”
Schumer quickly echoed Elias’s marching orders, telling reporters that this bipartisan reform effort is “unacceptably insufficient and even offensive.”
Fixing the legal loophole that helped cause Jan. 6 is “offensive”? This is exactly the hyperpartisan thinking that is tearing the country apart.
There appears to be supermajority support for an electoral reform that can prevent another Jan. 6 riot from happening. If Schumer can’t lead in a bipartisan manner to allow this important work, he should step aside and let more responsible leaders get the job done.
