Charen writes, “One can share Democrats’ alarm about the state of our democracy without concluding that the For the People Act was the answer. In fact, none other than the New York Times editorial board argued that the bill is poorly tailored…. HR 1 is a mashup of sound ideas — requiring a paper record of each vote — with outdated and arguably unconstitutional measures (such as) banning so-called ‘dark money’ at a time when small-dollar donations are more important; and limiting speech, which the ACLU, among others, opposes. Some are now saying the Democrats should turn to the John Lewis Act as a response to Republican efforts to curtail voting rights in the states. But the Lewis Act is off point too.”
She’s critical of the focus on the intricacies of state-based voting requirements when it appears the GOP is open to abandoning honoring elections altogether.
“The far more pressing emergency is the Republican Party’s loosening attachment to democratic procedures and to truth itself,” Charen warns. “As we saw in the aftermath of 2020, 147 Republican office holders were willing to decertify the Electoral College count. A few brave local Republican officials resisted tremendous pressure to alter or misreport the results of elections in their states. They demonstrated integrity. For their trouble, instead of being lauded and celebrated as heroes of democracy, they have been censured by GOP committees across the country as the legend of the Big Lie has seized the minds of rank-and-file Republicans.”
Democrats, according to Charen, can address this “threat” by amending the Electoral Count Act of 1887, which she notes, was “passed following the contentious Hayes/Tilden election in 1876 — a contest that was so close it threatened to tear the country apart just 11 years after Appomattox.”
The columnist explains, “As the votes were being counted in 2020, Republican influencers like radio host Mark Levin were suggesting that state legislatures had a ‘constitutional duty’ to reverse the will of the voters and name their own slate of Trump electors…. A supermajority should be required to decertify any state’s electoral votes, not just a simple majority as the law now permits. Additionally, the law should be amended to eliminate the ‘failed election’ section that empowers legislatures to substitute their preference for that of the voters.”
Five months ago, in his January 4 article for The Atlantic, Hasen addressed the possibility of Republicans trying to override the will of the voters in a presidential election by declaring that a “failed election” has occurred. Hasen’s article was published only two days before the January 6 insurrection, which found a violent mob of Trump supporters attacking the U.S. Capitol Building in the hope of stopping Congress from certifying Biden’s Electoral College victory.
Hasen wrote, “The trouble is, federal law gives state legislatures the ability to name a slate of presidential electors after a popular vote has occurred in a ‘failed’ election…. To address this, states should pass new laws that define ‘election failure’ narrowly, such as in the case of a natural disaster that physically prevents voters from casting their ballot for president. Congress, too, must limit and define what counts as a failed election. By expressly declaring via law that legislatures have no power to choose electors except in exceptionally rare and narrow circumstances, states will make future efforts to pressure legislators to overturn the will of the voters much harder.”
He, too, pointed out the need to reform the Electoral Count Act, which dictates how Congress affirms the presidential election. And he offered a similar suggestion to Charen’s about raising the threshold for objecting to Electoral College votes.
According to Hasen, “The act is supposed to provide procedures for sorting out the claims between such contested slates, but it contains many worrisome ambiguities and gaps that need to be remedied.”
Benjamin Ginsberg, a longtime Republican election lawyer, flagged some of these problems last month in The Washington Post. For example, if Congress refused to accept a state’s slate of electors for any reason, would that state’s electors be subtracted from the denominator of the 538 total Electoral College votes to determine whether a candidate got the required majority? That question matters a great deal, because if no candidate gets such a majority, the Twelfth Amendment specifies that the House of Representatives would then choose the president, under a rule giving each state just one vote, allocated by a majority vote of that state’s delegation. That deeply undemocratic outcome, with California and Texas having the same number of votes (one) as Rhode Island and South Dakota, is something that everyone should want to avoid. Even worse, Ginsberg notes, a norm-breaking House majority could refuse to seat some members of the minority party at the beginning of Congress’s term (which usually takes place on January 3) to manipulate which party holds the majority in each state’s delegation during the recognition of Electoral College votes (January 6).
A final problem states should address, one that turned out not to be a problem in 2020 but that certainly could be in the future, is potential defections from the slate of electors chosen by each state—so-called faithless electors. The Supreme Court confirmed last summer in Chiafalo v. Washington that laws replacing or punishing such “rogue electors” are constitutional. States should follow suit and pass laws providing for the replacement of any presidential elector who would vote “faithlessly.”
“No law can stop reckless people from trying to thwart the popular will, but we should still address the obvious weak spots in our system,” he concluded.