And Congress has spent 134 years avoiding the topic.
Instead, it has agreed to abide by the Electoral Count Act each 4 years, even when, as a constitutional matter, the statute could also be little greater than a glorified suggestion. In truth, Congress has diligently sidestepped the talk by passing resolutions tying itself to the foundations of the regulation — a nod to the notion that they won’t be necessary.
The unanswered questions depart in the present day’s Congress in a deadly place. Democrats, together with the 2 House GOP members of the Jan. 6 choose committee, need to stop a future effort by Trump or another dropping candidate to assault the switch of energy throughout certification. That makes Electoral Count Act reform a central a part of the choose committee’s mandate.
Yet earlier than the panel can suggest a change to the regulation, it should no less than attempt to settle a query that’s vexed generations of constitutional students: Can the Electoral Count Act’s key provisions be enforced, or can a rogue future Congress — in league with a dropping presidential candidate — merely ignore it?
Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 panel and a constitutional regulation professor, stated any reforms the panel passes would largely depend upon the “honor system.”
Future Congresses “have to decide to abide by the Constitution and the rule of law,” Raskin stated.
Across the aisle, Jan. 6 choose committee vice chair Rep. Liz Cheney (R-Wyo.) — who has lambasted Trump for the reason that Jan. 6 assault — acknowledged “substantial debate” over the Electoral Count Act’s constitutionality in a pre-insurrection memo to colleagues urging them to certify Joe Biden’s victory.
Experts are cut up on whether or not any Congress can go a regulation that will dictate how its successors certify presidential elections. Typically, the House and Senate have the constitutional energy to set their very own guidelines, which will be modified at will. Attempting to legislate in opposition to this is able to be unconstitutional. But the Electoral College certification is so vital that many constitutional students say it overrides that congressional prerogative.
Still, their view is, virtually talking, irrelevant. What issues most is how leaders of the Congress elected in 2024 and future presidential years behave. They’re not beholden to undertake the prevailing view of the scholarly group, and congressional leaders typically don’t.
Some of Trump’s closest allies, together with a number of lawmakers, spent months after his 2020 defeat crafting authorized theories that the Electoral Count Act is unconstitutional, urging then-Vice President Mike Pence to ignore it in a bid to hold Biden from the presidency. If a future Congress decides the Electoral Count Act can’t govern the Jan. 6 certification, these fringe theories would function a blueprint — and there’s little recourse to overrule them.
For now, the Jan. 6 panel seems to be forging forward with out a agency reply, deciding that doing one thing to stop any future subversion of democracy is healthier than doing nothing. In truth, aides say the sheer act of placing reforms into regulation might function a deterrent.
“Whether a future Congress can deviate from the [Electoral Count Act] is an open question,” stated a House aide aware of efforts to reform the regulation, addressing the unfinished work on situation of anonymity. “By putting [changes] in law, they acquire a status that makes it hard to walk away from, and likely why Congress never has done so.”
That argument has uncanny parallels to the talk that consumed Congress in 1887, a decade after a disputed presidential election almost splintered the republic anew.
“[T]o these congressmen, an unenforceable law was better than no agreement at all,” DePaul University constitutional regulation professor Stephen Siegel wrote in a widely cited 2004 analysis of the Electoral Count Act. Those 19th-century lawmakers thought-about an unenforceable regulation worthwhile, Siegel added, due to its “ability to bind Congress’ conscience and create a moral obligation to abide by its terms.”
Whether the trendy Congress will hold abiding by that ethical obligation, after all, stays to be seen. Many consultants are satisfied that the Electoral Count Act can bind Congress, as a result of competing constitutional rules — like Congress’ energy to “to make all Laws which shall be necessary and proper” — justify legislating one thing as important because the transition of energy.
Ned Foley, an Ohio State University constitutional scholar, acknowledged “differences of opinion” whilst he asserted that future Congresses would have to abide by a modified Electoral Count Act. But, he warned: “No rules can perfectly constrain a set of human beings who, if they want to do something out of pure political desire … could ignore rules.”
Despite students’ entreaties that Congress attempt for an Electoral Count Act overhaul no matter political constraints, it is from clear that something might go Congress earlier than the 2024 election. The Senate GOP filibustered a bipartisan House-passed invoice creating an unbiased Jan. 6 fee.
There’s additionally the unsettled chance that courts would keep away from weighing in on a future Electoral Count Act dispute. Judges have lengthy hesitated to wade into inner choices of Congress, and may be significantly reluctant to act — within the shadow of Bush v. Gore — in a approach that might be seen as figuring out the end result of the presidency.
Until the Electoral Count Act, the one requirement for the counting of Electoral College votes appeared within the Twelfth Amendment, which requires the House and Senate to meet within the presence of the vice chairman and depend ballots delivered by the states. If no candidate will get a majority, the modification sends the election to the House.
The Electoral Count Act sought to fill within the gaps, establishing a course of and deadlines for states to certify their election outcomes and requiring a joint session of Congress to be held on Jan. 6 after each presidential election. It asks the vice chairman to preside and browse returns from every state, whereas empowering lawmakers to problem the validity of sure electors.
Trump, seizing on ambiguities within the statute, pressured Pence to refuse to depend dozens of Biden electors. The then-president additionally deputized allies in Congress to lodge as many challenges as attainable, to attempt to delay certification of Biden’s victory. Pence’s refusal to go alongside turned Trump supporters in opposition to the vice chairman: a number of the mob chanted “Hang Mike Pence” through the rebellion.
A yr later, Electoral Count Act reform stays a low-profile pillar of the Jan. 6 choose panel’s mission, with Rep. Zoe Lofgren (D-Calif.), spearheading the trouble. Lofgren, who chairs the separate House committee that oversees elections, and her colleagues are hoping to particularly deal with weaknesses within the regulation that Trump and his allies sought to exploit.
Deborah Pearlstein, a constitutional regulation professor at Yeshiva University’s Cardozo Law School, recommended some “low-hanging fruit” adjustments to lawmakers that embody elevating the bar for substantive challenges to electoral votes and establishing a treatment if the House and Senate disagree on how to resolve a disputed set of electors.
“I’m worried about the Big Lie 2.0,” stated Foley, the constitutional scholar, noting that the regulation barely held up amid Trump’s baseless fraud claims. “The system needs to be ready for a scenario where the issue wouldn’t be fabricated.”