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September 22, 2022

Ending Electoral Count Ambiguity

The House passes reforms to the Electoral Count Act that more Republicans probably should support.

The House voted 229-203 on Wednesday to pass a bill aimed at updating the 1887 Electoral Count Act, a rather poorly written law that both sides of the political aisle have appealed to following presidential election results that didn’t go their party’s way.

Of course, the impetus for this bill is the January 6 Capitol riot, which the Democrats and a couple of turncoat Republicans have used as a political bludgeon against Donald Trump’s supporters and conservatives in general. In the final vote, only nine Republicans joined Democrats to pass the bill, and those nine are all leaving Congress one way or another, including sponsor Liz Cheney. Most of the nine voted to impeach Donald Trump (the second time).

That said, while those leading the push for this reform of the ECA unquestionably have anti-Trump motives, there is little real cause for objecting to the need to change the poorly constructed law on the merits. Ambiguity in the law is the enemy of justice, as it serves as little other than a legal wax nose that politicians can easily twist to fit their political aims.

After nearly every presidential election since 2000, members of Congress have appealed to the Electoral Count Act as a means of officially objecting to the outcome. In 2000, 2004, and 2016, Democrats voiced their objections. In 2020, it was the Republicans’ turn, as they raised claims of election fraud.

Trump and members of his team, appealing to the ECA, erroneously claimed that Vice President Mike Pence had the unilateral authority to stop the electoral count and the ratification of the 2020 election results. Thanks to the poorly written and confusing language of the ECA, numerous folks read it to favor their own partisan views rather than observe fidelity to the Constitution. Furthermore, if Pence did have the authority to reject the electors, then why didn’t Al Gore exercise this same unilateral power back in 2000 with an even closer election result?

Over the summer, the Senate presented its own version of an update to the ECA, but in some ways the House’s version may be better. Of course, neither bill is perfect, but it’s not wrong to say that either one would be an improvement over the current law, as both provide greater clarity to the role of the vice president in presiding over the electoral count. The bills make clear that the VP is merely presiding over a ceremonial process.

Furthermore, both bills increase the number of members of Congress who would need to issue objections before any would be aired. The Senate bill would require at least one-fifth of senators to issue a complaint before an objection is aired, and the House’s bill would raise that to one-third of lawmakers. This would stop what has become a habit for certain Democrat lawmakers to grandstand every time a Republican has been elected president. The House bill would also narrow what objections could be raised against the vote.

Due to the current partisan divide and vilification of Republicans by Democrats and Joe Biden himself, Republicans and conservatives have found themselves tempted to have a knee-jerk reaction against this bill. That’s unfortunate, as there are indeed issues that need broad bipartisan investment, and a chance to help correct the ECA is one of those opportunities. More Republicans should have been involved in hashing out this legislation to better ensure that the Democrats don’t unduly tilt the field in their favor. Republican Representative Claudia Tenney (NY) gave some insightful objections to portions of the bill, but most Republicans chose to stand on the sidelines and simply decry it in total over certain specific aspects of the legislation rather than engaging in the process and seeking to correct those issues. Of course, fraternizing with Cheney may have had negative political consequences, so here we are.

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