Attempts to Trump-Proof Presidential Certification Clash With Congressional Reality

Attempts to Trump-Proof Presidential Certification Clash With Congressional Reality

And Congress has spent 134 years avoiding the subject.

Instead, it has agreed to abide by the Electoral Count Act every four years, even though the statute may be little more than a glorified suggestion. In fact, Congress has diligently sidestepped the debate by passing resolutions that commit 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 predicament. Democrats, along with the two House GOP members of the Jan. 6 select committee, want to prevent a future attempt by Trump or another losing candidate to attack the transfer of power during certification. This makes the reform of the Electoral Act a central part of the mandate of the select committee.

But before the panel can propose a change in the law, it must at least try to resolve an issue that has plagued generations of constitutional scholars: Can the key provisions of the Electoral Count Act be enforced, or can a rogue state in the future – in competition with a losing presidential candidate — just ignore it?

Rep. Jamie Raskin (D-Md.), a Jan. 6 panel member and a constitutional law professor, said any reforms the panel goes through will depend largely on the “honor system.”

Future congresses “must decide to abide by the constitution and the rule of law,” Raskin said.

Across the aisle, the Vice Chair of the Jan. 6 Selected Committee, Rep. Liz Cheney (R-Wyo.) — who has criticized Trump since the Jan. 6 attack — sparked a “substantial debate” about the constitutionality of the Electoral Count Act in a pre-insurgency memo to colleagues who urged them to win the election. Joe Biden to confirm.

Experts are divided on whether a congress can pass a law that would dictate how its successors certify presidential elections. Typically, the House and Senate have the constitutional power to set their own rules, which can be changed at will. It would be unconstitutional to legislate against this. But the Electoral College’s certification is so important that many constitutional scholars say it waives that Congressional privilege.

Yet their opinion, practically speaking, is irrelevant. What matters most is how the leaders of the Congress elected in 2024 and future presidential years behave. They are under no obligation to adopt the prevailing view of the scientific community, and congressional leaders often do not.

Some of Trump’s closest allies, including a few lawmakers, spent months after his 2020 defeat formulating legal theories that the Electoral Count Act is unconstitutional, urging then-Vice President Mike Pence to ignore it in an attempt to keep Biden from the presidency. If a future Congress decides that the Electoral Count Act doesn’t apply to the Jan. 6 certification, these fringe theories would serve as a blueprint — and there’s little recourse to them.

For now, the January 6 panel appears to be moving on without a clear answer, deciding that doing something to prevent future undermining of democracy is better than doing nothing. In fact, aides say the mere act of turning reforms into law can serve as a deterrent.

“Whether a future congress may deviate from the… [Electoral Count Act] is an open question,” said a House official familiar with the efforts to reform the law, tackling the unfinished work on the condition of anonymity. “By introducing [changes] in law they acquire a status that makes it hard to walk away from, and probably why Congress never did.

That argument has uncanny parallels to the debate that tore up Congress in 1887, a decade after a contentious presidential election nearly shattered the republic again.

“[T]o these congressmen, an unenforceable law was better than no agreement at all,” wrote Stephen Siegel, a DePaul University professor of constitutional law, in a much-cited 2004 analysis of the Electoral Count Act. Those 19th-century lawmakers considered an unenforceable bill worth while, Siegel added, for its “ability to bind the conscience of Congress and create a moral obligation to abide by its terms.”

Whether the modern convention will continue to live up to that moral obligation, of course, remains to be seen. Many experts believe the Electoral Count Act can bind Congress because competing constitutional principles — such as Congress’s power to make “all laws that are necessary and just” — justify legislation as crucial as the transfer of power. .

Ned Foley, a constitutional scientist at Ohio State University, acknowledged “differences of opinion” even as he argued that future congresses should abide by an amended Electoral Count Act. But he warned, “No rule can perfectly limit a bunch of people who, if they want to do something out of sheer political desire…can ignore rules.”

Despite the pleas of scholars that Congress would attempt a revision of the Electoral Count Act regardless of political restrictions, it is far from clear that anything could pass Congress before the 2024 election. The Senate GOP has a bipartisan, by the House passed bill to create an independent committee on Jan. 6.

There is also the uncertain possibility that courts would avoid a future dispute with the Electoral Count Act. Judges have long hesitated to interfere with internal Congressional decisions, and may be extremely reluctant to act — in the shadow of Bush v. Gore — in ways that could be seen as determining the outcome of the trial. presidency.

Until the Electoral Count Act, the only requirement for vote counting of the Electoral College was the Twelfth Amendment, which requires the House and Senate to meet in the presence of the Vice President and count the ballots issued by the states. If no candidate obtains a majority, the amendment sends the election to the House of Representatives.

The Electoral Count Act sought to fill the gaps by setting up a process and deadlines for states to certify their election results and hold a joint session of Congress on January 6 after each presidential election. It asks the vice president to chair and read each state’s returns while allowing lawmakers to challenge the validity of certain voters.

Trump took advantage of ambiguities in the statute and pressured Pence to refuse to count dozens of Biden voters. The then president also placed allies in Congress to face as many challenges as possible, trying to delay the certification of Biden’s victory. Pence’s refusal to go turned Trump supporters against the vice president: Some of the crowd chanted “Hang Mike Pence” during the uprising.

A year later, the reform of the Electoral Count Act remains an unobtrusive pillar of the January 6 select panel’s mission, with Rep. Zoe Lofgren (D-Calif.), who leads the effort. Lofgren, who chairs the House’s separate committee overseeing the elections, and her colleagues hope specifically to address weaknesses in the law that Trump and his allies sought to exploit.

Deborah Pearlstein, a constitutional law professor at Yeshiva University’s Cardozo Law School, suggested some “low-hanging fruit” changes for lawmakers, including raising the bar on substantial electoral ballot challenges and enacting a remedy if the House and Senate pass. disagreeing on the solution a contentious bunch of voters.

“I’m concerned about the Big Lie 2.0,” the constitutional scholar Foley said, noting that the law barely held up amid Trump’s baseless fraud claims. “The system has to be ready for a scenario where the problem wouldn’t be made up.”

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Rachel Meadows

Rachel Meadows

Trending topics news writer who enjoys cooking, walking her dog and travel.

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