Jan. 6 hearings highlight problems with certification of presidential elections and potential ways to fix them

Then-Vice President Joe Biden, on Jan. 6, 2017, presided over Congress’ certification of Donald Trump’s presidential victory despite the objections of a handful of House Democrats. AP Photo/Cliff Owen^[7]

Abusing the act

During Reconstruction^[8], the period after the Civil War, Congress faced contentious questions over whether Southern states appropriately appointed presidential electors. At other times, two sets of competing electors for different candidates were sent to Congress.

The Electoral Count Act was enacted in 1887^[9] to streamline rules after the disputed presidential election of 1876^[10].

But in recent years, the act has revealed some weaknesses.

The act allows members of Congress^[11] to object to counting votes from a state. They can do that if one member of the House and one Senator write an objection. The Electoral Count Act does not list what kind of objections are proper, leaving it to Congress to decide if objections are appropriate or not. If this kind of dispute arises, Congress can debate what to do with the electoral votes.

The objection mechanism was used just once in the first 100 years of the act.

But in 2005^[12], members of Congress objected to counting Ohio’s electoral votes cast for George W. Bush, alleging the results were inaccurate because of voter suppression and faulty voting machines. Congress spent two hours debating whether to count the votes. In 2021^[13], members of Congress again objected to counting Arizona’s and Pennsylvania’s electoral votes for Joe Biden, alleging a variety of claims, including fraud, which forced Congress to spend more time in debate.

These objections have undermined confidence in the outcome of presidential elections. Members of Congress publicly aired baseless claims that the election results were in doubt^[14]. There was no serious reason^[15] for Congress to doubt^[16] the outcome of the 2020 election.

One reform might simply increase the threshold required to file an objection, from one member of each chamber to, say, one-fifth of the members. That would speed up counting and reduce opportunities for members of Congress to take grievances to the floor.

Power that does not exist

Another problem that has emerged relates to the vice president’s role^[17] in counting electoral votes.

An impetus for the Jan. 6, 2021, attack on the Capitol was a mistaken belief that Vice President Mike Pence could ignore the Electoral Count Act and unilaterally refuse^[18] to count electoral votes from some states or indefinitely delay counting.

The Constitution mandates^[19] that the President of the Senate – typically the Vice President – open the certificates of electoral votes from each state. In addition, under the current Electoral Count Act, the President of the Senate presides over the meeting, calls for objections, and generally moves the process along.

Pence did so, despite intense pressure from President Donald Trump to reject the Electoral College votes^[20] that would formally make Democratic candidate Joe Biden president.

But there are worries among some members of Congress that another vice president might be tempted to assert power that does not exist^[21]. A vice president might create chaos by claiming that some votes should not count, or telling Congress what it can or cannot do, setting off a fierce debate in the middle of the count.

So another reform to the act might make it clear that the vice president has no role over the meeting except ministerial acts like opening the envelopes from presidential electors. That clarity reduces opportunities for mischief in the future.

These two concerns reflect the narrow role of Congress in counting votes and the mechanics of that meeting.

On Jan. 6, 1961, mahogany boxes containing the Electoral College votes in the presidential campaign between John F. Kennedy and Richard Nixon are carried by pages to the House chamber. Kennedy won. Bettmann/Getty Images^[22]

Improvement - or more complexity?

There are more ambitious changes to federal law that Congress might examine, but these also raise thorny problems.

For instance, some Republican state legislators in 2020 – encouraged by Trump – suggested they could appoint their own electors well after Election Day^[23] if they were dissatisfied with the results certified by the state’s election officials.

Some cited a provision in federal law that if the state “failed to make a choice^[24]” for choosing presidential electors on Election Day, the state legislature could appoint them later. But this provision was designed for states that required majority winners in presidential elections and might hold a runoff after Election Day if no candidate received a majority.

Congress could repeal this “failed to make a choice” provision and insist that Election Day is Election Day, with no opportunity under the statute to second-guess the results. And a new law could specify the limited circumstances in which a state could respond to a disaster or catastrophe that would require additional time for the casting of votes.

Other revisions might provide for expedited review of election litigation in the federal courts. Federal courts have been increasingly active^[25] in reviewing election-related cases ever since the Supreme Court’s contentious decision in Bush v. Gore^[26] affecting Florida’s recount in 2000, which resulted in Bush winning the election.

Elections are run by states^[27], and states already have extensive procedures in the canvass, recount^[28] and audit of their votes. Federal judicial review should be a matter of last resort, for those situations in which the ordinary state process for resolving election disputes hasn’t worked.

One benefit of Electoral Count Act reform is that it lends itself toward bipartisanship. No one knows what future presidential elections will bring. Republicans and Democrats in Congress have both expressed disapproval of some states’ presidential election outcomes over the last 25 years, and it’s not clear who will be disappointed next.

Congress cannot prevent all mischief, but it can reduce the possibility of mischief in the future. Lawmakers can address some of the easier questions, like the threshold for objections and the role of the vice president. Congress can also have serious conversations about some of the more controversial questions.

It has been 135 years since Congress considered how to count electoral votes, and it seems unlikely that, once it makes reforms to the Electoral Count Act, it would revisit these rules in the near future. Whatever statute it enacts now must be drafted to endure the test of time.

This is an updated version of an article originally published^[29] on January 20, 2022.

Authors: Derek T. Muller, Professor of Law, University of Iowa

Read more https://theconversation.com/jan-6-hearings-highlight-problems-with-certification-of-presidential-elections-and-potential-ways-to-fix-them-185655

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