In sharply partisan times, a line attributed to Otto von Bismarck comes to mind: “Politics is the art of the possible, the attainable — the art of the next best.” With Democrats frustrated over their inability to advance either a comprehensive voting-rights bill or filibuster reform through a 50-50 Senate, they should now turn their attention to more pragmatic concerns.
A good place to start would be overhauling the 135-year-old law that helped inflame the riot that took place at the U.S. Capitol last year.
The Electoral Count Act of 1887 was a belated response to the fiercely disputed presidential election of 1876, which was marred by violence and widespread fraud allegations. Several states submitted competing Electoral College slates, but no system was in place to assess which were legitimate. Congress hastily put together a commission to try to determine a victor (that would eventually be Republican Rutherford B. Hayes, despite Democrat Samuel Tilden winning more popular votes).
Remember that the U.S. effectively holds two presidential elections. States administer their own votes (and write their own rules) to select members of the Electoral College. Then these electors meet and cast their ballots for a given candidate. Congress’s role is to certify the results of that vote for each state. The question is what should happen when a dispute arises.
The ECA tried to obviate the need for subsequent emergency commissions by specifying rules to follow in tabulating and ratifying Electoral College votes. Unfortunately, vague language in the law opened the door to partisan mischief: Most significantly, its wording allowed a single member of Congress per chamber to interrupt the process if they objected to a state’s certified electoral slate.
Furthermore, the role of the vice president in presiding over the congressional count was left unclear. President Donald Trump attempted to exploit that ambiguity last year when he pressured Vice President Mike Pence to reject the electoral slates of six swing states won by Joe Biden. (To his credit, Pence refused.) When Trump supporters broke into the U.S. Capitol, they tried to intimidate the vice president further. Chants of “Hang Mike Pence” echoed through the halls.
Addressing the many failures that led to that day’s turmoil will take time. For now, two reforms to the ECA are essential to protect the certification process and avoid further chaos.
First, Congress needs to place further restraints on its own partisanship. A single member in each chamber shouldn’t be enough to gum up the certification process. Raising the threshold needed to register an objection to (say) one-fifth of both the House and Senate would prevent fringe members from derailing the proceedings while still ensuring legitimate complaints can be heard. Congress should also specify exactly what qualifies as a valid objection.
Second, the law should clarify that the vice president’s task is entirely ceremonial and does not confer any power to influence the proceedings. (Trump made the stakes of the current ambiguity all too explicit on Sunday, when he published a statement saying that Pence “could have overturned the election.”)
Lawmakers of both parties have already expressed support for reforming the ECA. Senators Susan Collins and Angus King have been leading bipartisan efforts on the matter for several weeks. Notably, these talks have the approval of Senate Minority Leader Mitch McConnell, whose support should bring enough Republican votes to overcome a filibuster.
Understandably, Democrats are frustrated that their broader electoral reforms aren’t going anywhere. Some have also voiced legitimate concerns over state-level attempts by Republicans to undermine the certification process. But given the reality of a split Senate and the nation’s broader divisions, a bipartisan reform of the Electoral Count Act would count as significant progress in its own right — the art of the next best, you might say.
More From Other Writers at Bloomberg Opinion:
Don’t Ever Get Used to Trump’s Contempt for the Law: Jonathan Bernstein
Do Americans Even Know What Free Speech Is?: Stephen L. Carter
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