Opinion | Congress, repair the Electoral Rely Act — earlier than it’s too late

The time to revisit these guidelines is as far faraway from the subsequent election as potential, which suggests now.

The Electoral Rely Act was adopted within the wake of the Hayes-Tilden debacle of 1876. In that election, Rutherford B. Hayes and Samuel Tilden each claimed victory in three Southern states. Hayes denounced the disenfranchisement of Black voters. Tilden objected to miscounting of the ballots. Either side despatched rival units of electoral votes from the disputed states. Congress — with the Senate in Republican fingers and the Home managed Democrats — narrowly averted the catastrophe of simultaneous inauguration ceremonies solely with a last-minute compromise that gave Republicans the presidency however ignominiously ended Reconstruction.

Congress feared one other shut name. However to say its resolution was opaque is definitely being too variety to the statute. I’ve spent a lot of my tutorial profession attempting to parse its which means, and I nonetheless discover it impenetrable or, on the very least, indeterminate.

A key sentence supplies that if the Home and Senate disagree about what electoral votes ought to depend, “the votes of the electors whose appointment shall have been licensed the manager of the State, below the seal thereof, shall be counted.” That means the slate of electors licensed the state’s governor is the one which controls.

However that’s solely the beginning of the inquiry. What if a couple of submission is licensed the state’s governor, as could be the case if the governor certifies the tally of the state’s in style vote earlier than a lawsuit difficult that tally is determined, after which the governor certifies a unique tally after the lawsuit efficiently alters the result? Lest you assume this unrealistic, it really occurred to Hawaii in 1960 — though that state’s votes didn’t have an effect on John F. Kennedy’s electoral faculty victory, and Congress “with out the intent to ascertain a precedent” determined to depend Hawaii for Kennedy as properly.

What if the state’s governor certifies one submission, however the secretary of state certifies a unique one? Which “govt” of the state qualifies as “the manager” for the aim of breaking a impasse between the Senate and Home? Arizona, specifically, has provoked this query as a result of its governor and secretary of state are from reverse events. However even Georgia, given its internecine struggle amongst Republicans, has raised a model of this subject.

What if the vp, as chair of the particular joint session of Congress that counts electoral votes, makes an attempt to rule in favor of one of many conflicting submissions? The statute’s legislative historical past reveals a transparent congressional intent to attenuate the vp’s function within the vote-counting course of. Nonetheless, some convoluted verbiage in its textual content might be learn as empowering the vp to make an preliminary name, topic to being overruled separate votes in each chambers.

This yr, Democrats dreaded that Vice President Pence would possibly try to say this energy. Subsequent time, Vice President Kamala D. Harris — presumably operating for reelection, presumably a presidential candidate herself — will chair the session. It must be possible to strike a bipartisan deal that unambiguously removes any likelihood of vice-presidential mischief.

And whereas a bipartisan deal is into account, ought to a state’s “govt” (both governor or in any other case) stay the tiebreaker between a divided Home and Senate? This yr, the governors in 4 of the important thing battleground states have been Democrats (Michigan, Nevada, Pennsylvania and Wisconsin), however that may not nonetheless be true after the 2022 midterms.

Perhaps it’s potential for Congress, unsure of the political terrain 4 years from now, to vogue a brand new type of tiebreaker that’s neutral and impartial of adjusting political fortunes specifically states.

On the very least, the brand new Congress ought to maintain hearings on the subject. The necessity to enhance the Electoral Rely Act is made extra pressing this uncomfortable reality: Earlier than 2020, one might assume its procedures can be related solely when it’s genuinely indeterminate which candidate received. Now we see that Congress could be known as upon to settle a presidential election at any time when a defeated candidate manages to generate simply sufficient doubt concerning the consequence to make a political dispute of it.

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