Thursday, March 31, 2022

Reform Electoral Count Act? Yes. Now. -- March 31, 2022 column


President John F. Kennedy said what any smart homeowner knows: “The time to repair the roof is when the sun is shining.”

Kennedy used the line in his 1962 State of the Union address to urge Congress to pass his anti-recession economic legislative agenda. Sixty years later, it’s time to repair the roof of our democracy after the manmade disaster of Jan. 6, 2021, and to prevent another assault on the electoral process.

The violent mob that stormed the Capitol – with some protesters chanting, “Hang Mike Pence!” – wanted to overturn the presidential election. They were misinformed and misled by a president who could not accept defeat.

Donald Trump still falsely claims the Electoral Count Act of 1887, which sets timetables and rules for counting electoral votes, allowed Vice President Mike Pence to ditch state election results and install Trump for another four years. Pence did the right thing by refusing to bow to Trump’s power grab.

The Constitution “constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” Pence wrote that day in a letter to Congress. Under the 12th Amendment, the vice president, as president of the Senate, opens the certificates of electoral votes from each state, which are then counted.  

More than a year late, Pence rebuked Trump publicly.

“And I heard this week President Trump said I had the right to `overturn the election.’ President Trump is wrong,” Pence said in February in a speech to the conservative Federalist Society. “I had no right to overturn the election.”

Our system held, but one shudders to think what would have happened IF . . . if Pence had agreed with Trump and others who wanted to run roughshod over the will of the people.

So, what now? To ensure the peaceful transfer of power in the future, we must update and clarify the antiquated Electoral Count Act, once described in a Washington Post story as a “confusing word salad of run-on sentences.”

The Democratic staff of the House Administration Committee studied the law for months and concluded in a 31-page report in January the law is “badly in need of reform” to remove ambiguity about the vote count process. Ambiguity is the leak in democracy’s roof.

Sen. Susan Collins, Republican of Maine, announced in late January a bipartisan group of 16 senators, including Democrat Mark Warner of Virginia, is working on legislation to clarify the law, including the vice president’s role as purely ceremonial.

Trump showed his hand in a statement that said in part: “how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?”

Better question: Why should a vice president have the power to overturn the votes of millions of Americans and the hard work of thousands of local and state election officials?

A group of Senate Democratic leaders also is involved in “discussion drafts” of reform.

One likely change would make it harder for members of Congress to challenge a state’s electoral votes and raise the bar for sustaining challenges. Currently, if only one senator and House member object to a state’s results, they can draw out the counting process. Also, the timetable for recounts and lawsuits in the states could be lengthened.

Updating the count act would make counting the votes more fair, but there’s concern that it would do nothing to make voting itself more fair.

Republican candidates still insist the 2020 election was stolen as GOP-run state legislatures tighten election rules and ballot access. House Democrats have tried to pass major voting rights legislation only to see it stalled in the Senate.

Some liberals fear updating the count act alone could make it more difficult to stop Republican state officials from negating elections their favored presidential candidate lost, leaving Congress locked into certification.  

The White House is “open to and a part of conversations about the Electoral Count Act,” but that reform should not replace larger voting reforms, White House Press Secretary Jen Psaki said.

Congress needs to address these valid concerns now -- and reform the Electoral Count Act while the sun shines.

©2022 Marsha Mercer. All rights reserved.

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