When it comes to the politics of governance, there is one axiom that even the most committed partisans mostly abide: Don’t give yourself power that you wouldn’t give to your enemies.
Post-January 6, Republicans are acknowledging the problem with allowing a vice president to obstruct the counting of electoral votes in Congress. All they have to do is close their eyes for two seconds and imagine Kamala Harris doing in 2025 what former President Donald Trump instructed his Vice President, Mike Pence, to do in January 2021.
As Pence, who has been called a “stone-cold coward” by Steve Bannon for refusing to go along with Trump’s election-flipping scheme, recently put it: “Under the Constitution, I had no right to change the outcome of our election. And Kamala Harris will have no right to overturn the election when we beat them in 2024.” Senator Marco Rubio (R-Fla.) echoed the sentiment on Face the Nation: “Well, if President Trump runs for re-election, I believe he would defeat Joe Biden, and I don’t want Kamala Harris to have the power as vice president to overturn that election.”
Resorting to boogeyman tactics to make a case for constitutional government is ugly. But if demonizing Vice President Kamala Harris is what it takes for Republicans to give themselves permission to go along with fixing the Electoral Count Act, well, it’s worth the price. Our democracy will be in a safer place if Republicans and Democrats successfully work together to protect voters from radicals in Congress who think they can cancel millions of votes on a whim.
In recent years, there’s been a worrisome trend of using the Electoral Count Act to lodge unmerited complaints by both Democrats and Republicans. Since George W. Bush was elected in 2000, a handful of fringe Democrats have used it, unsuccessfully, to challenge every Republican presidential victory.
Democratic former Florida Rep. Alcee Hastings objected in January 2001 citing “overwhelming evidence of official misconduct, deliberate fraud, and an attempt to suppress voter turnout.” California Democratic Rep. Maxine Waters said Florida’s electoral votes were “fraudulent.” With no senators joining their objections, then-Vice President Al Gore overruled them. (Whatever you think of Al Gore, please note that the man was so committed to democracy that he graciously presided over the certification of his own defeat.).
In January 2005, California Democratic Sen. Barbara Boxer and Ohio Democratic Rep. Stephanie Tubbs Jones objected to Ohio’s votes. They delayed the counting of votes with a laundry list of complaints about voting issues, the Iraq War, and a “flawed system.” Thirty-one members of Congress supported their failed effort.
After the 2016 election, Democrats lodged objections about malfunctioning voting machines, Russian interference, and other unproven allegations. Then-Vice President Joe Biden rejected them all. But what if he hadn’t? That’s the legal gray area that’s always existed in the Electoral Count Act that Congress must put into the black and white letters of the law.
Republicans have another reason to be eager to work with Democrats on this issue. If the Democrats had it their way, many of them would get rid of the Electoral College altogether and elect presidents by popular vote. The polling is slightly on their side, too. If Republicans need another partisan argument about the need for Electoral College Reform, it is this: Fix it, or the Democrats will nix it. And, absent the Electoral College, Republicans might kiss their White House aspirations goodbye. Republicans have lost the popular vote in all but one election since 1992.
So, how can we fix the Electoral Count Act?
First, the role of the vice president in counting Electoral College votes must be specified and limited. Second, the threshold for members of Congress to raise objections should be higher. It should take more than one member of Congress and one senator to raise a challenge, stop the counting of votes, and force the House and the Senate to debate. Third, nip future schemes to send fake electors to Washington in the bud. Make it clear that once electors are appointed, they cannot be replaced later as means of altering the state’s election results. Finally, rewrite the law to provide legal guidance to resolve legitimate disputes. And the Senate working group should examine other adjacent issues, such as protecting election workers and officials from harassment and threats.
Congress should have a keen interest in reform. The branch’s constitutional role is not to select and reject Electoral College votes, but to legislate. If Congress wants to prevent another January 6, it must do its job and exercise its legislative powers to reform the Electoral Count Act so bad actors can’t find any gray areas to exploit again.
