If it’s not going to enact S. 1/H.R. 1, what should Congress be doing on election reform? One answer is that it should be studying the events of this past January, in which the country experienced a near‐constitutional crisis as the incumbent president and some of his supporters sought to throw into doubt the legitimate succession of the presidency. Deeper crisis was averted because various actors — state governments and officials, the Vice President, members of Congress — resisted pressure to breach their duties and overstep their legally and constitutionally prescribed roles.
The ill‐starred and misnamed For the People Act, much criticized in this space in recent months, is almost entirely lacking in content that in any way responds to the January near‐crisis or is meant to avert its repetition in the future. The reason is plain enough: nearly all the bill’s provisions were drafted long before, being in fact a jumble of assorted progressive ideas mostly unrelated to the developments that unfolded between Election Day 2020 and Inauguration Day 2021.
As several observers have noted lately, the sharpest threats to democratic process in America at the moment relate not to the casting but to the counting of votes. A few drifting planks from the exploded flotsam of S.1 — concerning permanent paper ballots and voting system security, for example — might be relevant here. But much of the needed writing is best done on fresh sheets of paper.
One high priority should be to take a look at the Electoral Count Act of 1887, subject of a helpful panel discussion organized by Kevin Kosar at the American Enterprise Institute earlier this month. (A related op‐ed is here.) Enacted as a response to the ultra‐contentious Hayes‐Tilden contest a decade earlier, the Act laid out rules meant to govern how Congress should address disputes over the legitimacy of electoral slates submitted by the states. As former Vice President Mike Pence put it earlier this year:
I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no Vice President in American history has ever asserted such authority. Instead, Vice Presidents presiding over Joint Sessions have uniformly followed the Electoral Count Act, conducting the proceedings in an orderly manner even where the count resulted in the defeat of their party or their own candidacy.
While well‐intentioned, the 1887 act is very far from perfect. It leaves too wide an opening for those who would argue that Congress, the Vice President or both have leeway to exercise a selective power, rather than being bound in a “ministerial” way to count arriving electoral votes. It includes some bits of vague and puzzling language, and it fails to take advantage of opportunities to clarify that, e.g., further objections are out of order if a state has certified a slate of electors without challenge under its own law.
Let’s get on with defending democracy the right way.
