Proposed amendments to the US Electoral Count Act could be the way forward in eliminating the US Electoral College.
I have written several blogs in the past concerning the totally undemocratic way in which the United States elects its President. The Electoral College is an anachronism which generations of politicians from both parties have used to usurp the will of the people. Its history includes counting each slave as 2/3rds of a vote and appointing electors to the College without any reference to the general electorate. I have strongly suggested that it is time this archaic institution was abolished. However, abolition would require a Constitutional amendment and the chances of that passing any time in the near future are nill.
Enter the US Electoral Count Act (ECA), which defines the process when Congress meets every four years on January 6 to count the Electoral College votes for president and vice president. This meeting is mandated by the Constitution, which requires that all electoral votes be sent to Congress and counted in front of the House and Senate. The count is normally a formality, but the ECA includes a caveat with potentially enormous consequences. Congress can reject an electoral vote, the law says, if a majority of both the House and Senate finds that an elector’s appointment was not “lawfully certified” or that the elector’s vote was not “regularly given” (Whatever that may mean?).
This provision was invoked by the eight Republican senators and 139 House members who attempted to reject the electoral votes of Arizona and Pennsylvania in 2021. These members of Congress treated the ECA as a license to re-litigate election‐law disputes that the courts had already settled. Their plans to oppose enough votes to swing the election gave false hope to many of Donald Trump’s supporters, who came to view January 6 as the day the president’s theories of election fraud would be vindicated.
The 135-year-old law, known as the US Electoral Count Act, is chock-full of confusing, and ambiguous, provisions, and legal scholars have long warned that it could trigger a crisis. That’s exactly what happened after the 2020 election, when Donald Trump and his associates exploited the law’s vague and arcane language to claim that they could overturn the will of the voters. That exploitation led directly to the violence on Jan. 6, 2021.
For example, the law currently makes it very easy for members of Congress to obstruct and delay the final count of electoral votes on Jan. 6; any objection lodged by one representative and one senator will do the trick. Republicans took advantage of this after the 2020 election, including when Senators Ted Cruz and Josh Hawley introduced meritless objections simply to slow the process. The new bills would raise the bar, by requiring at least one-fifth of both houses of Congress to sign on before an objection can be lodged, and by strictly limiting the grounds for any objection. The reform bills would also clarify that the vice president’s role on Jan. 6 is purely ministerial, and that, despite Mr. Trump’s claims, the vice president has no authority to throw out electoral votes or accept a slate different from the one a state has already certified.
Congress should seize this rare moment while there is bipartisan momentum behind ECA reform. Waiting until 2023, when the next presidential campaign will be underway, could be too late. By then, both parties are more likely to be focused on who the immediate beneficiary of any change might be, making agreement on major reforms more difficult. No matter who is in power, it will always be preferable to leave complex, fact‐intensive election‐law disputes to the courts, who are better equipped to get the answer right.
However, there is an even greater opportunity inherent in these new bills to reform the US Electoral Count Act. It could be a back-door way of eliminating, or at least modifying, the anachronism of the Electoral College that sends those votes to the Congress. Once the historically “inviolate” barrier of the traditional Presidential election process has been breached by these ECA amendments, it opens the possibility that that archaic dam (the Electoral College) will slowly erode completely.
That process is far more likely than a Constitutional amendment and should thus be encouraged at all levels and in all ways.