Opinion | It’s time to change how we count electoral votes
This is way more than a technical level, for the reason that spurious effort to block the counting of Arizona’s and Pennsylvania’s electoral votes, spearheaded by Republican Sens. Ted Cruz (Tex.) and Josh Hawley (Mo.), rested on the premise that Congress could certainly second-guess state elections, even absent competing slates of purported electors or different dwell disputes as of the time licensed electoral votes arrive in Washington. This competition, in flip, rested on an opportunistic studying of the admittedly ambiguous Electoral Count Act of 1887, which supplies members of Congress the ability to reject votes “not . . . regularly given.”
Now is the time for Congress to amend this statute to replicate the consensus expressed within the Senate week, a consensus that fortuitously corresponds with the statute’s intent, nonetheless inartfully expressed. The goal of the regulation was exactly to stop any extra improvised electoral commissions just like the one used to settle the 1876-1877 Hayes-Tilden dispute. Yet Mr. Cruz and Mr. Hawley recklessly asserted the other, supposedly as a result of they wished to give costs of fraud one other listening to, although the allegations have been patently absurd and already litigated. Their interpretation of the regulation would permit a future Congress managed by one celebration to overturn the outcomes of a presidential election by a easy majority vote, with the consequence that “our democracy would enter a death spiral,” as Republican Majority Leader Mitch McConnell (Ky.) put it this week.
The Electoral Count Act’s prolix textual content ought to promptly be modified to make crystal-clear that the states, not Congress, are the final word arbiters of their elections for presidential electors, and that their votes can be thought-about “regular” apart from uncommon circumstance by which the Constitution or federal regulation could have been violated — by the election of an ineligible particular person, say, or by holding the election on an unauthorized date. Congress also needs to take into account making the president professional tem of the Senate liable for the vote count. This would eradicate, past any doubt, the situation beneath which a vice chairman might purport to determine the votes’ validity himself.
Such modifications, instructed first by constitutional scholar Michael J. Glennon of Tufts University within the wake of the 2000 Bush-Gore debacle, are lengthy overdue. So, too, are various further updates to the Electoral Count Act, instructed not solely by Mr. Glennon but in addition by Ohio State election regulation knowledgeable Edward B. Foley and others, that might assist eradicate alternatives for partisan mischief of the sort that destabilized the nation on Jan. 6. A big bipartisan majority of Congress has refused a chance to usurp energy the Constitution assigns to another person, proof of that majority’s civic duty. Now, they need to write it into regulation.
