And Congress has spent 134 years avoiding the subject.
Instead, it has agreed to abide by the electoral census law every four years, even if the law may constitutionally be little more than a glorious proposal. Indeed, Congress has avidly bypassed the debate in order to Resolutions are self-binding to the rules of the law – a nod to the idea that they may not be mandatory.
The unanswered questions put today’s Congress in a dangerous position. The Democrats, along with the two GOP members of the January 6 election committee, want to prevent a future attempt by Trump or another defeated candidate to attack the transfer of power during certification. The reform of the electoral counting law is thus a central component of the mandate of the select committee.
But before the body can propose a change in the law, it must at least try to clarify a question that has worried generations of constitutional scholars: Can the most important provisions of the electoral counting law be enforced or can a future rogue congress – in the wake of a loss of a presidential candidate – simply ignore it?
Rep. Jamie Raskin (D-Md.), A Jan. 6 panel member and professor of constitutional law, said any reforms the panel adopts would largely depend on the “honor system”.
Future Congresses “must choose to comply with the Constitution and the rule of law,” said Raskin.
Across the aisle, Jan 6th Vice Chairperson Rep. Liz Cheney (R-Wyo.), Who has berated Trump since the Jan 6 attack, confirmed a “substantial debate” over the constitutionality of the Election Counting Act Memo before the riot to colleagues asking them to confirm Joe Biden’s victory.
Experts disagree on whether Congress can pass a law that will dictate how its successors will confirm presidential elections. Typically, the House and Senate have constitutional powers to make their own rules, which can be changed at will. Trying to counter this would be unconstitutional. But the certification of the electoral college is so significant that many constitutional scholars say it overrides that prerogative of Congress.
Still, their view is practically irrelevant. Most importantly, how will the leaders of Congress elected in 2024 and the coming presidency behave. You are under no obligation to adopt the predominant opinion of the scholarly community, and congress leaders often do not.
Some of Trump’s closest allies, including some lawmakers, spent months after his 2020 defeat building legal theories that the electoral counting law was unconstitutional and telling then-Vice President Mike Pence to ignore it to keep Biden out of the presidency . If a future Congress decides that the Election Counting Act can’t regulate January 6th certification, these marginal theories would serve as a blueprint – and there are little ways to overturn them.
At the moment, the January 6th panel appears to be moving forward with no firm response, deciding that it is better to do something to prevent future subversion of democracy than to do nothing. In fact, aides say that simply implementing reforms as law could be daunting.
“Whether a future congress of the [Electoral Count Act] is an open question, “said a member of the House staff who is familiar with the efforts to reform the law and commented on the unfinished work on condition of anonymity. “By setting [changes] legally they are given a status that makes it difficult to leave, and Congress probably never did. “
This argument bears eerie parallels to the debate that preoccupied Congress in 1887, a decade after a controversial presidential election nearly split the republic again.
“[T]For these congressmen, an unenforceable law was better than no agreement at all, ”wrote Stephen Siegel, professor of constitutional law at DePaul University, in a The much-cited 2004 analysis of the Election Counting Act. Siegel added that 19th century lawmakers
It remains to be seen, of course, whether the modern Congress will continue to honor this moral obligation. Many experts believe that the electoral count law can bind Congress because competing constitutional principles – such as Congress’s power to “make all laws that must be necessary and appropriate” – justify making something as critical as a change of power.
Ohio State University constitutional scholar Ned Foley admitted “disagreement” despite claiming future conventions would have to adhere to a revised electoral counting law. But he warned: “No rules can perfectly limit a number of people who, if they want to do something for sheer political will, might ignore rules.”
Despite requests from scholars that Congress attempt a revision of the electoral counting law regardless of political pressures, it is far from clear that anything could happen to Congress before the 2024 elections. The Senate GOP put pressure on a bipartisan bill on January 6 to create an independent commission.
There is also the unresolved possibility that courts would avoid weighing a future dispute over the electoral counting law. Judges have long hesitated to meddle in internal Congress decisions and may be particularly reluctant to act in the shadow of Bush against Gore in a way that might determine the outcome of the presidency.
Until the Electoral Count Act, the only requirement for electoral college votes to be counted was in the Twelfth Amendment, which requires that the House and Senate meet in the presence of the vice president and count the state ballots. If neither candidate gets a majority, the amendment sends the election to the House of Representatives.
The Electoral Count Act attempted to fill the loopholes by establishing a process and deadlines for states to confirm their election results and calling for a joint session of Congress on January 6th after each presidential election. It calls on the Vice-President to take the chair and read the declarations of each state while empowering lawmakers to challenge the validity of certain voters.
Trump picked up on ambiguities in the law and urged Pence to refuse to count dozens of Biden voters. The then president also represented the allies in Congress to table as many challenges as possible in an attempt to delay the confirmation of Biden’s victory. Pence’s refusal to take part turned Trump supporters against the Vice President: some of the mobs chanted “Hang Mike Pence” during the uprising.
A year later, electoral census reform remains a minor pillar of the January 6 elected panel mission, with MP Zoe Lofgren (D-Calif.) Leading the effort. Lofgren, the chairman of the House of Representatives’ separate committee that oversees the elections, and her colleagues hope to target weaknesses in the law that Trump and his allies have sought to exploit.
Deborah Pearlstein, professor of constitutional law at Yeshiva University’s Cardozo Law School, proposed some low-hanging fruit changes to lawmakers, including raising the bar for substantial disputes in votes and creating an appeal in the event of the House and the House of Representatives Senate disagree on the solution are a controversial electorate.
“I’m concerned about Big Lie 2.0,” said Foley, the constitutional scholar, noting that the law barely stood up to Trump’s unsubstantiated fraud allegations. “The system has to be ready for a scenario in which the problem is not fabricated.”