You’d think many of them would now refrain from challenging Biden’s electors. You’d think the appalling contempt for democracy driving Trump’s effort is now so glaringly clear that they would want no association with it, or would see refraining as a way to demonstrate that this latest lawless display is intolerable.
But that’s extremely unlikely. Which raises a question: In a future presidential election, if Republicans control both chambers of Congress and similar objections are brought against a victorious Democrat’s electors, mightn’t they succeed in invalidating them?
“It’s become a lot easier to envision that in the last month,” Alexander Keyssar, the leading historian of U.S. democracy, told me. “I find this to be very worrisome — very disturbing.”
This is striking from a cautious academic like Harvard’s Keyssar. His great new book recounting the story of the electoral college, and his history of the contested right to vote in America, are models of meticulous scholarship. The latter recounts the worst democratic breakdowns in our history.
Now Keyssar thinks we’re seeing the portents of another serious breakdown. By seeking to invalidate Biden’s electors, Keyssar warned, Republicans have showed a “willingness” to “go down this path,” making this more likely to “happen again in different circumstances.”
Trump’s appalling call
Trump pressured Brad Raffensperger, Georgia’s secretary of state, by telling him that “I just want to find 11,780 votes” to overturn the outcome. Importantly, this came after Raffensperger and his deputies debunked numerous lies about vote fraud made by Trump to justify this demand.
In other words, Trump pressured Georgia officials to find just enough votes to make him winner, in spite of their official conclusion that this would overturn the legitimate outcome. Trump might have unlawfully solicited election fraud and/or attempted to defraud a state’s residents of a fair election.
Now note that dozens of Senate and House Republicans are still set to object to Biden’s electors when Congress counts them on Jan. 6, with no signs of backing off.
The GOP scheme
It’s important to underscore that the justification for objecting to Biden electors — numerous claims of fraud that have already been shot down in dozens of court rulings — is just as baseless as the one that Trump used to demand vote-rigging in Georgia.
Even worse, many of those Republicans will likely vote against counting those electors. Under the Electoral Count Act, if one Senate and House member objects to a state’s electors — such as Biden electors from Georgia, Pennsylvania, Michigan and Wisconsin — the Senate and House each vote on those objections.
The Democratic House will vote the objections down, which ensures those electors will be counted. What remains unclear is how many Senate Republicans will vote to uphold the objections, i.e., vote not to count Biden’s electors.
A ‘very disturbing’ scenario
This is what Keyssar sees as “very disturbing.” In a future close election, what is to stop a Republican-controlled Senate and House from refusing to count a victorious Democratic presidential candidate’s electors from numerous close states?
In that scenario, one or more friendly GOP state legislatures might send alternate electors to Congress, which it might count. That didn’t happen this time, but Trump and many Republicans called for it to happen, and at least one legislature wavered.
Who’s to say it won’t happen in a future scenario where one or more states are decided by a few hundred votes, making it easier to claim the true voting outcome cannot be known, justifying alternate electors?
Even if Republicans pursuing this tactic don’t believe it will overturn the election this time, Keyssar told me, they “are establishing its legitimacy.”
“A norm is being broken,” Keysser said, one in which Congress does not “monkey with a presidential election unless there is ample evidence and cause.”
All of which means that if Democrats win the Georgia runoffs and control of the Senate, they must consider amending the Electoral Count Act to prevent future such abuses.
“They have to reform this to try to make it as difficult as possible for Congress to engage in a partisan coup,” Keyssar told me.
One way might be to clarify that Congress cannot object to electors certified by a state’s governor. Another might be to repeal the provision allowing for congressional objections entirely.
But Keyssar points to complications. We might want Congress to be able to object, because one can envision future outcomes in a particular state being genuinely murky, perhaps because of massive voter suppression (or actual fraud) or a disaster.
It’s hard to guard against bad faith
In the end, the real challenge here is that it’s hard to legislate in a way that safeguards the system against naked bad faith.
As Raffensperger’s response to Trump underscored, individuals who carried out duties faithfully — including some GOP senators who will count Biden electors and state legislatures that refused to send alternate electors — are a big reason the system is working this time. But for how much longer?
“That can work for a while, buttressed by norms that when Congress acts in this capacity — as a counter of electoral votes — its members ought to act not as partisans but as procedural arbiters,” Keyssar told me.
“But that expectation is likely to break down under stress,” Keyssar continued. “It’s unrealistic to expect that it will always work — especially in times of bitter partisan acrimony.”
We should consider ourselves warned.
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