Recent admissions from an insider about former President Donald Trump’s challenge to last year’s election results should impel lawmakers of both parties to revise the convoluted Electoral Count Act that governed the proceedings.
Peter Navarro, Trump’s trade adviser, wrote in a memoir that he and Trump strategist Steve Bannon had a plan to halt Congress’s certification of election results last Jan. 6 — a plan that actually was hurt, he said, not helped, by the riot that engulfed the U.S. Capitol. The idea was to exploit loopholes in the Electoral Count Act to ramp up pressure on Vice President Mike Pence, while giving Pence a flimsy excuse to reject results from six states.
“By law [in the ECA], both the House of Representatives and the Senate must spend up to two hours of debate per state on each requested challenge,” Navarro wrote. “For the six battleground states, that would add up to as much as twenty-four hours of nationally televised hearings across the two chambers of Congress.”
If the hearings ginned up enough public pressure on Pence, the logic went, Pence would (to quote a news summary) “send the electoral votes back to six contested states, where Republican-led legislatures could try to overturn the results.”
It has long been known that this was Navarro’s goal, but the report on his intended mechanism is new. Trump’s team first wanted to use some of the ECA’s unwieldy procedures to create confusion about which electoral votes were legitimate and then to use other ECA provisions — its in-Congress challenge rules — to “run out the clock” on Congress’s ability to make the results official.
Specifically, one portion of the ECA refers to legislative and judicial determination of a state’s electors, while another makes official the ultimate certification by each state’s governor. Then, yet another portion can be wrongly interpreted to give Congress leeway to decide anew whether the certifications pass muster, while at one point requiring the House and Senate to deliberate separately and at another point saying “the two Houses concurrently may reject the vote or votes.”
It all appears self-contradictory, and it’s all written with odd sentence structures and double- and triple-negatives. No wonder it could create confusion.
The Bannon-Navarro plan was improper, of course. There were no legitimate grounds to reject the results certified by each of the states. But the vital need is not to castigate but to urge future measures. The Trump team’s identification of all the procedural confusions in the ECA shows that the law needs reform. The attempted decertification nearly brought the electoral system to a dangerous impasse. The system cannot afford another such instance of impasse and instability.
The ECA was written in the 19th century, when technology and travel were more limited and the chain of custody of official records more difficult to ascertain.
We cannot know which party will be in position to exploit perplexity in future elections and which could suffer from it. Both parties should want to avoid both bewilderment and perfidy enabled by current ECA confusion.
As thinkers and reformers have been saying for months, and as polls show the public wants, Congress should rewrite the ECA. Revise its deadlines. Take account of modern technology. Streamline its procedures. Simplify its language. Clarify that the vice president has no independent authority to reject electoral results certified by states.
Now that Navarro’s memoir highlights the panoply of possibilities for ECA mayhem, the impetus for revision should grow. Republican leaders Mitch McConnell and Kevin McCarthy and Democratic leaders Joe Biden, Chuck Schumer, and Nancy Pelosi should together start reform. In doing so, they also could renew faith that, when it comes to the basic rules, our constitutional system still can work.
