The Electoral Count Act of 1887 shows its age

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Preoccupied by potential problems in the next election when Congress counts the presidential votessome legislators are interested in the reform of the federal law that governs this process: the law on the electoral count.

Reforming the law, which sets out vote counting procedures for the president in the Electoral College, means identifying what he is supposed to do, areas that need reform and any other issues.

As a specialist in electoral lawI recognize that the presidential elections in the United States are complicated. Voters do not directly elect the president. After Election Day, and based on popular vote, each state chooses presidential electors who formally meet and vote for the president, who are then passed on to Congress. There are 538 electoral votesand after Congress has counted them and verified that a candidate has obtained a majority – at least 270 – the winner of the presidential election is declared.

In theory, a rule on how to count votes seems simple enough. But it hasn’t been easy.

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Abuse the act

While Reconstruction, the period following the Civil War, Congress faced contentious questions about whether Southern states were properly nominating presidential electors. At other times, two sets of voters competing for different candidates were sent to Congress.

The law on the electoral count was adopted in 1887 streamline the rules after the disputed presidential election of 1876.

But in recent years, the law has revealed some weaknesses.

The act allows members of congress oppose the counting of a state’s votes. They can do that if a member of the House and a US senator write an objection. The voter count law does not list the type of objections that are appropriate, leaving it up to Congress to decide whether objections are appropriate or not. If this kind of dispute arises, Congress can debate what to do with the electoral votes.

The objection mechanism was only used once in the first 100 years of the law.

Corn in 2005, members of Congress objected to the counting of Ohio’s electoral votes cast for George W. Bush, alleging the results were inaccurate due to voter suppression and faulty voting machines. Congress spent two hours debating whether to count votes. Other members of Congress tried in vain to oppose 2001 and 2017 to electoral votes from other states – no senator joined in these objections. In 2021members of Congress have again opposed Arizona and Pennsylvania’s electoral vote count for Joe Biden, alleging various allegations, including fraud, that have forced Congress to spend more time in the debate.

These objections have shaken confidence in the outcome of the presidential elections. Members of Congress publicly disseminated baseless claims that the election results were questionable. There was no serious reason to make Congress doubt the results of the 2020 elections.

A reform could simply increase the threshold required to file an objection, from one member of each chamber to, say, a fifth or a third of the members. This would speed up the count and reduce opportunities for members of Congress to air their grievances.

power that does not exist

Another issue that has emerged relates to the role of the vice president in counting electoral votes.

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An impetus for the January 6, 2021 attack on the Capitol was a mistaken belief that Vice President Mike Pence could ignore the Voter Count Act and unilaterally refuse to count the electoral votes of certain states or to delay counting indefinitely.

The Constitution prescribes that the president of the Senate – usually the vice president – opens the certificates of the electoral votes of each state. In addition, under the current voter count law, the President of the Senate chairs the meeting, calls objections and generally moves the process forward.

Pence did, despite intense pressure from President Donald Trump to reject Electoral College votes that would officially make Democratic nominee Joe Biden president.

But there is concerns among some members of Congress that another vice president may be tempted to assert a power that does not exist. A vice president could create chaos by saying certain votes shouldn’t count, or telling Congress what he can or can’t do, sparking fierce debate amid the count.

Thus, another reform of the law could specify that the vice-president has no role on the meeting, with the exception of ministerial acts like the opening of the envelopes of the presidential voters. This clarity reduces the possibilities of harm in the future.

Both of these concerns reflect the narrow role of Congress in vote counting and the mechanics of this meeting.

Improvement — or more complexity?

There are more far-reaching changes to federal law that Congress could consider, but these also raise thorny issues.

For example, some Republican state lawmakers in 2020 — encouraged by Trump — suggested they might nominate their own voters long after Election Day if they were not satisfied with the results certified by state election officials.

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Some have cited a provision of federal law that if the state “failed to make a choicefor choosing presidential voters on Election Day, the state legislature could name them later. But this provision was designed for states that required majority winners in presidential elections and could hold a runoff after Election Day if no candidate won a majority.

Congress could repeal this “didn’t make a choice” provision and insist that Election Day is Election Day, with no ability under law to guess the results. But there are complications that arise even with a reform as simple as this.

A state can suffer a terrorist attack election day or being hit by a hurricane the night before. Should the state have a chance of holding its elections a week or two later? And if so, how does Congress define the circumstances under which a state might hold a subsequent election?

Derek T. Muller

Other proposals call for stronger involvement of the federal courts. From my perspective, it seems preferable for the judiciary to consider serious challenges to the vote before Congress counts. Federal courts have been more and more active in reviewing election-related cases since the Supreme Court’s controversial decision in Bush versus Gore affecting Florida’s 2000 recount, which resulted in Bush’s election victory.

But this may invite additional questions. Elections are organized by the statesand States already have extensive canvassing procedures, tell and verification of their votes.

When and how should federal courts intervene? It is not clear that the courts could do anything differently – or, more importantly, better – than they already do. And he can invite every presidential election — close or not — to wind up in federal court, inviting a dozen Bush vs Gores each election.

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One of the advantages of reforming the electoral count law is that it lends itself to bipartisanship. No one knows what future presidential elections will bring. Both Republicans and Democrats in Congress have expressed disapproval of some state presidential election results over the past 25 years, and it’s unclear who will be disappointed next.

Congress cannot prevent all wrongdoing, but it can reduce the possibility of wrongdoing in the future. Congress can address some of the easier issues, such as the objection threshold and the role of the vice president. He can also have serious conversations on some of the most controversial issues. It can determine whether a changed law can make things better – or just invite more complexity and controversy.

Derek T. Muller is a professor of law at the University of Iowa.

This article is republished from The conversation.

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