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Thomas Gallatin / January 7, 2022

A Real Solution to Prevent a J6 Repeat

Republican lawmakers should propose a rewrite or elimination of the 1887 Electoral Count Act.

In light of the Democrats’ January 6 memorial theatrics, in which they have repeatedly insisted that American democracy was put under serious threat by the actions of the rioters overrunning the Capitol building, Republicans have a golden opportunity to grab the real issue by the horns. And that real issue has to do with the promotion of a misunderstanding of a poorly written law, the 1887 Electoral Count Act.

Contrary to Joe Biden’s claims that the protesters who gathered last January 6 were there “to subvert the Constitution,” the truth is the vast majority were there to rally against the 2020 election results in the fervently held belief that the election had been grossly fraudulent — in other words, that Biden’s election subverted the Constitution. Encouraged by Donald Trump, many of his supporters were led to believe that the Electoral Count Act granted Vice President Mike Pence and the Senate authority to reject the vote of the Electoral College.

This is a misreading of the law, albeit an understandable one given the ambiguous wording of the statute. Per the Constitution, the Framers clearly did not intend to make the executive branch beholden to the legislative branch. In the contested 1876 election, three states sent two different sets of electors to Congress. Ten years later, Congress came up with a legislative “solution” in an attempt to avoid a similar situation from arising. The issue is that the Act has been interpreted as giving Congress the authority to reject state electors, candidates, and even Electoral College votes if deemed not “regularly given,” which creates a fundamental problem — as if the Act effectively gave Congress rather than the judiciary the authority to resolve election disputes.

Unfortunately, the ECA has now become more problematic than helpful.

It wasn’t just the 2020 election that had members of Congress evoking the ECA in an attempt to justify rejecting the Electoral College vote. Democrat lawmakers did so following the election victories of George W. Bush and Donald Trump.

Republicans can jump on this idea, either rewriting or repealing the ECA, in order to clarify an important matter and to effectively undercut the partisan aims of Senate Majority Leader Chuck Schumer and his fellow Democrats regarding their “solution,” which is the passage of their ludicrous voting legislation. Schumer has already been laying the groundwork for the Democrats’ bait-and-switch, using the January 6 riot as an excuse to pressure Senators Joe Manchin and Kyrsten Sinema to cave on their resistance to eliminating the filibuster. Under the guise of “needing to act to protect American democracy,” Schumer will demand that they acquiesce.

“Democrats keep saying Jan. 6 must never happen again, but their main goal seems to be to use the memory of that day against Republicans in 2022,” the Wall Street Journal editorial board insightfully observes. “If they’re honest about ‘never again,’ they’ll grab the Electoral Count Act issue. Or Republicans could turn the electoral tables on Democrats by grabbing it first. If Congress does nothing, Americans are likely to conclude that Jan. 6 has become one more political prop for partisan gain.”

That would be because, for cynical Democrats, it is a political prop for partisan gain.

By preposing a rewrite or elimination of the ECA, though, Senate Minority Leader Mitch McConnell can effectively expose and blunt Schumer’s partisan agenda, while offering a truly bipartisan solution to the American people that actually addresses the problem exposed by the January 6 riot.

(Updated)

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