The 1887 law putting American democracy at risk
By Blake Hounshell and Leah Askarinam
The Electoral Count Act is both a legal monstrosity and a fascinating puzzle.
Intended to settle disputes about how America chooses its presidents, the 135-year-old law has arguably done the opposite. Last year, its poorly written and ambiguous text tempted President Donald Trump into trying to overturn the victory of Joe Biden, using a fringe legal theory that his own vice president rejected.
Scholars say the law remains a ticking time bomb. And with Trump on their minds, members of Congress in both parties now agree that fixing it before the 2024 election is a matter of national urgency.
“If people don’t trust elections as a fair way to transition power, then what are you left with?” said Sen. Angus King, I-Maine, who has been leading the reform efforts. “I would argue that Jan. 6 is a harbinger.”
‘Unsavory’ origins
The Electoral Count Act’s origins are, as King put it, “unsavory.”
More than a decade elapsed between the disputed election that inspired it and its passage in 1887. Under the bargain that ended that dispute, the Republican candidate, Rutherford B. Hayes, agreed to withdraw federal troops from the occupied South — effectively ending Reconstruction and starting the Jim Crow era.
The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 — which lays out what is meant to happen when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.
Amy Lynn Hess, the author of a grammatical textbook on diagraming sentences, said that mapping that one sentence alone would take about six hours and require a large piece of paper.
“It’s one of the most confusing pieces of legislation I’ve ever read,” King said. “It’s impossible to figure out exactly what they intended.”
King has been working through how to fix the Electoral Count Act since the spring, when he first started sounding the alarm about its deficiencies. His office has become a hub of expertise on the subject.
“It just so happens I have a political science Ph.D. on my staff,” he said. “And when I assigned him to start working on this, it was like heaven for him.”
Last week, King and two Democratic colleagues, Sens. Amy Klobuchar of Minnesota and Dick Durbin of Illinois, introduced a draft discussion bill aimed at addressing the act’s main weaknesses.
King said he hoped it would serve as “a head start” for more than a dozen senators in both parties who have been meeting to hash out legislation of their own.
One leader of that effort, Sen. Joe Manchin, D-W.Va., vowed Sunday that a reform bill “absolutely” will pass. Sen. Lisa Murkowski, R-Alaska, said the lawmakers were taking “the Goldilocks approach” — as in, “we’re going to try to find what’s just right.”
But finding a compromise that will satisfy both progressive Democrats and the 10 Republican senators required for passage in the Senate will not be easy. Already, differences have emerged over what role the federal courts should play in adjudicating election disputes within states, according to people close to the talks.
Mr. Worst-case scenario
Few have studied the Electoral Count Act more obsessively than Matthew Seligman, a fellow at Yale Law School.
In an exhaustive 100-page paper, he walked through nearly every combination of scenarios for how the law could be abused by partisans bent on stretching its boundaries to the max. And what he discovered shocked him.
“Its underexplored weaknesses are so profound that they could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball,” Seligman said.
He found, for instance, that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the results of the presidential election and the party that won legitimately would have been powerless to stop it.”
Now, the hard part
The easiest part in fixing the Electoral Count Act, according to half a dozen experts who have studied the issue, would be figuring out how Congress would accept the results from the states.
There’s wide agreement on three points to do that:
— Extending the safe harbor deadline, the date by which all challenges to a state’s election results must be completed.
— Clarifying that the role of the vice president on Jan. 6 is purely “ministerial,” meaning the vice president merely opens the envelopes and has no power to reject electors.
— Raising the number of members of Congress needed to object to a state’s electors; currently, one lawmaker from each chamber is enough to do so.
The harder part is figuring out how to clarify the process for how states choose their electors in the first place. And that’s where things get tricky.
The states that decide presidential elections are often closely divided. Maybe one party controls the legislature while another holds the governor’s mansion or the secretary of state’s office. And while each state has its own rules for working through any election disputes, it’s not always clear what is supposed to happen.
King’s solution was to clarify the process for the federal courts to referee disputes between, say, a governor and a secretary of state, and to require states to hash out their internal disagreements by the federal “safe harbor date,” which he would push back to Dec. 20 instead of its current date of Dec. 8.
The political obstacles are formidable, too. Still reeling from their failure to pass federal voting rights legislation, many Democrats are suspicious of Republicans’ motives. It’s entirely possible that Democrats will decide that it is better to do nothing, because passing a bipartisan bill to fix the Electoral Count Act would allow Mitch McConnell, the Republican Senate minority leader, to portray himself as the savior of American democracy.