The presidential election of 2020 is now old news (thank goodness). Though I believe the Electoral Count Act to be unconstitutional, more about that later, I thought I’d look at the law to see what it says. If you’d like to read it, you can find it here.
In a nutshell, the law does provide for objections to be submitted during the joint session in which the electoral votes are counted, but with a few caveats. It is not a blanket free-for-all, backdoor around the electoral college results.
- The objections are to be submitted in writing, signed by one senator and one member of the House, without argument. That means no grandstanding or debate until after each house goes to debate the objection.
- The law states that: “no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.”
The second one is big because, first, both houses must agree that the votes of a State in question were not regularly given by certified electors. It reads as if there isn’t room to argue about the certification of the electors in this law, only whether the vote was given by certified electors. Since the electors were all certified according the to the rules, the governors and courts of each State in question all agreeing to that point, the drama we witnessed in Congress on January 6th was in nearly every respect a wild stretch of this unconstitutional count law and just that – drama – a last, desperate effort of sore losers in the name of a sore loser written in the annals of, “How I accidently became an autocrat.”
Like so many of the things that went on in the Trump administration, the whole electoral count objection charade backed by the intimidation of an angry mob lacked adequate forethought. Due to the number of those who choose to view the unvarnished truth, Trump’s congressional toadies had to have been aware it was a fool’s errand. And from my point of view, this point makes the events of that day a matter of sheer, unadulterated spite on top of attempting to throw out the democratic result and substitute it with Trump.
We’ve heard from the Trumplicans about what’s constitutional concerning the election. But I think they failed to read the 12th amendment that does not provide Congress with any power over the electoral college unless there is no winner of the plurality, indicating wide deference to the States’ certified results, complain as they might. If not for this law that provides a distant hope to aspiring usurpers for Congress to insert itself where it does not belong with such a low bar of a paper signed by only one senator and one representative and simple majority vote required to toss out a State’s votes (really?!!!), the drama that unfolded would have been impossible. If there is a silver lining here anywhere, it’s a lesson in congressional meddling where it should not, and in such casual fashion – carried out threats of violence, a trashed Capitol, and a very real brush with autocracy. I am quite surprised that it did not happen sooner.
Now, it’s time for Congress to act to shore up this weakness in the electoral process and plug up the exploitable holes. The first step is to repeal this unconstitutional and nonsensical Act, and replace it with a modern mechanism that ensures the States can transmit their results in a way that cannot be tampered with, and the bar by which any action may be needed to sort out actual irregularities (not settled controversies) needs to be much higher than a paper signed by one senator and one representative with only a simple majority vote required to toss out a State’s votes.