The 1887 Law Putting American Democracy at Risk

[Celerity]

A bipartisan group of lawmakers wants to fix the Electoral Count Act, the obscure law used to justify the Jan. 6 riot. Is it even possible?

https://www.nytimes.com/2022/02/07/us/politics/electoral-count-act-reform.html


Senator Angus King of Maine has been sounding the alarm on the deficiencies of the Electoral Count Act. Credit...Ryan David Brown for The New York Times

The Electoral Count Act is both a legal monstrosity and a fascinating puzzle. Intended to settle disputes about how America chooses its presidents, the 135-year-old law has arguably done the opposite. Last year, its poorly written and ambiguous text tempted Donald Trump into trying to overturn Joe Biden’s victory, using a fringe legal theory that his own vice president rejected. Scholars say the law remains a ticking time bomb. And with Trump on their minds, members of Congress in both parties now agree that fixing it before the 2024 election is a matter of national urgency. “If people don’t trust elections as a fair way to transition power, then what are you left with?” said Senator Angus King, an independent from Maine who has been leading the reform efforts. “I would argue that Jan. 6 is a harbinger.”

‘Unsavory’ origins

The Electoral Count Act’s origins are, as King put it, “unsavory.” More than a decade elapsed between the disputed election that inspired it and its passage in 1887. Under the bargain that ended that dispute, the Republican candidate, Rutherford B. Hayes, agreed to withdraw federal troops from the occupied South — effectively ending Reconstruction and launching the Jim Crow era. The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 — which lays out what is meant to happen when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.

Amy Lynn Hess, the author of a grammatical textbook on diagraming sentences, told us that mapping out that one sentence alone would take about six hours and require a large piece of paper. “It’s one of the most confusing pieces of legislation I’ve ever read,” King told us. “It’s impossible to figure out exactly what they intended.” King has been working through how to fix the Electoral Count Act since the spring, when he first started sounding the alarm about its deficiencies. His office has become a hub of expertise on the subject. “It just so happens I have a political science Ph.D. on my staff,” King said. “And when I assigned him to start working on this, it was like heaven for him.”

Last week, King and two Democratic colleagues, Senators Amy Klobuchar of Minnesota and Dick Durbin of Illinois, introduced a draft discussion bill aimed at addressing the act’s main weaknesses. King said he hopes it will serve as “a head start” for more than a dozen senators in both parties who have been meeting to hash out legislation of their own. One leader of that effort, Senator Joe Manchin III of West Virginia, a Democrat, vowed on Sunday that a reform bill “absolutely” will pass. Senator Lisa Murkowski, a Republican of Alaska, said the lawmakers were taking “the Goldilocks approach” — as in, “we’re going to try to find what’s just right.” But finding a compromise that will satisfy both progressive Democrats and the 10 Republican senators required for passage in the Senate won’t be easy. Already, differences have emerged over what role the federal courts should play in adjudicating election disputes within states, according to people close to the talks.

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[Duncanpup]

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