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The Law That Fueled the Capitol Riot


When

Donald Trump

addressed supporters in Washington, D.C., on Jan. 6 at a rally, he led them to believe they could change the 2020 election outcome. Yet states had certified results, lawsuits had run their course, and the Electoral College had voted. President

Joe Biden’s

inauguration was constitutionally inevitable.

The Trump camp was able to gin up false hope by exploiting ambiguities in the Electoral Count Act of 1887 (ECA). The law was intended to resolve contested presidential elections, but in the 21st century it has mainly been used by partisans in Congress to exploit the ceremonial process of counting electoral votes. Some Democrats took advantage of the ECA to cast doubt on legitimate results in 2001, 2005 and 2017, and far more Republicans did the same at Mr. Trump’s urging in 2021.

In the wake of the Capitol invasion, the ECA is ripe for an overhaul that reins in Congress’s increasingly destabilizing role in presidential elections. Repealing the law would make future challenges, even by the most willful candidates, less likely to spin out of control.

***

The ECA clashes with principles of federalism and the separation of powers. The Framers didn’t want the executive branch to be beholden to the legislative branch, so they designed an Electoral College to elect the President independent of Congress. Voters in each state register their choice for President by choosing a slate of electors, whose votes are then transmitted to Congress to be logged.

Yet the ECA allows Congress to unconstitutionally interfere with state decisions. Members of the House and Senate can claim electoral votes are not “regularly given” or “lawfully certified,” holding up the count and disqualifying electors if a majority in both houses agrees.

The ECA’s vague language has become a license for Congress to assume a role in the presidential election process that neither the Constitution’s framers nor the 19th-century authors of the ECA intended.

Sen. Josh Hawley

pointed to, among other things, political interference by social-media companies in objecting to the 2020 results. Democrats cited Russian interference in 2016 and long Ohio voting lines in 2004. These may be legitimate issues, but Congress can address them through legislation.

The problems the ECA tried to address in 1887 also weigh less heavily today. There’s less of a need to verify that a state’s electoral count is authentic when results are broadcast in real time than when the outcome was delivered to Congress by train or carriage.

The problem of “faithless electors,” who vote for a candidate other than the state’s winner, may also be approaching resolution. In last year’s Chiafalo decision, the Supreme Court affirmed that state legislatures have the power to legally bind electors to the state’s winning candidate, and more states have done so.

The federal government has also significantly expanded its supervision of state elections since the ECA. The Voting Rights Act of 1965 means the kind of large-scale disenfranchisement that existed in the disputed 1876 Hayes-Tilden election would be impossible.

The doomsday exception would be if a state delivers more than one slate of electors. That was the scenario raised by pundits who feared Republican state legislatures would help Mr. Trump steal the election from Mr. Biden. Yet state laws are clear that the candidate who wins the most votes is entitled to a state’s electors, and in 2020 no state officials tried to retroactively subvert the will of their voters.

In the case of fights over state electors, the judiciary is the best forum to adjudicate disputes over state law, voter fraud or other mischief. This is what happened in 2000 in Bush v.

Gore

, and the Supreme Court likely would have intervened this year if there had been competing slates of electors. Another layer of adjudication by Congress after the vote has taken place confounds more than it clarifies. And any role for Congress, however narrow, in choosing state electors beyond ceremonial counting is an invitation to partisan abuse.

***

Republicans ought to adhere to the Constitution in supporting the state legislatures’ role in presidential elections against progressives who are sympathetic to nationalized voting and parliamentary government. Too bad most of the GOP House caucus damaged its credibility by voting to object to electoral votes, which perpetuated Mr. Trump’s myth of a stolen election.

Members who voted to object are now facing a fierce backlash, with corporations cutting off donations to politicians they see as undermining the peaceful transfer of power. Yet those members were operating under the color of a flawed statute that has been misused for partisan reasons for at least 20 years, including in 2017 by none other than the House’s current lead impeachment manager,

Rep. Jamie Raskin.

The vagaries of the ECA created too much panic before the election and fueled Mr. Trump’s incendiary conduct afterwards. If the 117th U.S. Congress wants to firm up the legitimacy of election outcomes, then restoring the constitutional balance by repealing this dated legislation should be a priority.

Potomac Watch: Since Nancy Pelosi retook the speaker’s gavel in 2019, her top priority has been remaking the electoral system. The coronavirus gave her a boost. Images: Getty Images Composite: Mark Kelly

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