FOR A LOT In the past year, Democrats in Congress have intermittently and unsuccessfully pushed through various bits of voting rights legislation. Whatever the merits of these bills, they are a rare first response to the insurrection of January 6, 2021. A record number of Americans voted in 2020. Despite the long lines and confusion caused by the pandemic, the The problem was not access to the ballot, it was the attempted deception with the count. The Election Count Act of 1887 (RCTs), which attempts to set guidelines for how Congress resolves disputed results in presidential elections, is vague, confusing, possibly unconstitutional, and ripe for reform.
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To understand what the RCTs does, it helps to understand America’s Byzantine method of choosing a CEO. When Americans vote for president, they are actually voting for a list of electors who will themselves vote for that candidate at the electoral college meeting. Article II of the constitution explains that each state has the same number of electors as members of the House and Senate, that states send certified election results to Congress, and that in a joint session of Congress the president of the Senate (who is also the Vice President) “will open all the Certificates, and then the Votes will be counted”. If no candidate achieves a majority of the electoral college votes, then the House elects the president and each state’s delegation gets a single vote.
the RCTs it was intended as a guide to resolving disputes. It allows lawmakers to formally object to individual results or entire state lists, as long as each objection is signed by at least one senator and one representative. If a majority of both houses accepts the objection, the votes in question are not counted. It also establishes a “safe harbor” deadline, stating that as long as states resolve disputed results at least six days before the electoral college votes, those results are “conclusive” and must be counted by Congress.
But RCTs It leaves a lot of uncertainty, including why members of Congress can object, the role of the courts in resolving disputes, and whether the vice president has any discretion in the vote-counting process. Worse still, it allows Congress to reject valid votes. All that has to happen is for states to provide competing lists of voters (as urged by John Eastman, a lawyer advising Donald Trump on the outcome of the 2020 election) and for a majority of both houses of Congress to support the lists. alternative lists. Congress, rather than the American people, could elect the president. The framers of the constitution refused to allow the legislature to select the executive, but if Republicans control both houses of Congress in 2024, as well as the governorships of enough crucial states, and a 2020-like scenario re-emerges, it would be unwise to rely on the principles. and loyalty to the founders prevailing over realpolitik.
Many on the right are also concerned about RCTs abuse. If Republicans can vote to reject results they don’t like over baseless accusations of fraud, Democrats could, in theory, do the same over concerns about racially biased voting practices. Some libertarian-minded jurists argue that the RCTs itself—specifically, the provisions that allow Congress to reject voter rolls—is unconstitutional, because Article II provides no mechanism for rejection.
By allowing federal legislators to dictate their preferences, the RCTs it weakens state control over elections, which Republicans have traditionally defended. In 2020, Marco Rubio, a Republican senator from Florida, proposed extending the RCTsThe safe harbor deadline. John Thune and Mitch McConnell, the two leading Republican senators, have expressed their willingness to reform the RCTs. Some Democrats see this offer as a ruse to weaken support for voting rights, which it may be, but with a worthwhile result. ■
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This article appeared in the US section of the print edition under the headline “Who Counts Wins”