“Congress Has The Power To Prevent A Repeat Of January 6”

Trevor Potter and Norm Ornstein at TPM Cafe:

The barriers voters face before casting a ballot have rightly grabbed headlines recently. But there’s a way that tens of millions of Americans could be disenfranchised after voting in the next election that has gone under the radar. As the stirring testimony of the Capitol police officers recedes into our memory, we shouldn’t forget our democracy is still vulnerable to attack.  

Of course, it is important to address voting protections, preventing partisan actors from overturning legitimate election results, and creating better physical safeguards, like Capitol security. But we can’t lose sight of what made Jan. 6 a pivotal date. It is the date set by an 1887 law for the counting of electoral college votes — and it was the controversy engineered by Donald Trump over those votes that precipitated the violence. That law — the Electoral Count Act (ECA) of 1887 — is outdated. Congress can take an important step toward restoring Americans’ trust in the integrity of our democratic process by updating an obsolete law most Americans have never heard of, which is full of archaic and unclear language, to provide a clear and fair framework for resolving disputes in the Electoral College. 

We narrowly avoided a constitutional crisis on Jan. 6. The question becomes: what can we do to prevent an even worse scenario the next time?  

The biggest flaw in the ECA as written is that it makes it too easy for individual members of Congress to try to throw out a state’s results. There is bipartisan consensus amongst election law and constitutional experts that Congress can address this and that it must be done before the 2024 presidential campaign begins. As the American Enterprise Institute’s Kevin Kosar has written, “tightening up the ECA is critical to ensuring states’ lawfully submitted electoral votes are counted.” 

In fact, there is a real hero opportunity for a Republican Senator to take this on, since it’s a Democrat, Vice President Kamala Harris, who will preside over the joint session of Congress the next time we count the electoral college votes – in January 2025. It’s true that then-Vice President Mike Pence took the high road on Jan. 6 by correctly declaring he lacked authority to reject state electoral slates lawfully submitted to Congress. However, the American people can’t rely on future vice presidents to do the right thing. The stakes are too high to leave this to chance and the time for action is now, while there is still daylight before the looming 2024 campaign season. 

One can start by looking to Senate Minority Leader Mitch McConnell’s actions around Jan. 6 to see a bipartisan path forward. When Sen. Josh Hawley (R-MO) publicly declared he would object to the electoral vote count, it forced McConnell between a rock and a hard place. Congress would either try to override the voters’ decision for the first time in history or honor the people’s decision. The vast majority of Republican Senators understood their constitutional role and voted accordingly. …

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