ANOTHER VIEWPOINT: Repairing the electoral vote count

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The Los Angeles Times

Patriotism and common decency demand that Americans do everything possible to prevent another attempt to overturn the results of a free and fair election, as former President Trump and his allies tried a year ago this week. Here’s one action that both Democrats and Republicans agree on: Reform the arcane 19th century Electoral Count Act.

In addition to encouraging violent marauders to storm the Capitol on Jan. 6, 2021, Trump grasped for a second term by exploiting ambiguity in the Electoral Count Act of 1887, which governs how Congress certifies Electoral College votes. He pressured Vice President Mike Pence to throw out legitimate votes as Pence performed his duty to count Electoral College votes from the 2020 presidential election to prevent Joe Biden from taking office. The pressure came not only through Trump’s ridiculous tweets (“Do it Mike, this is a time for extreme courage!”) but also through a frightening memo by his lawyer “war gaming” how an interpretation of the Electoral Count Act could justify Pence overturning Biden’s victory.

Though Pence didn’t cave — causing rioters to chant, “Hang Mike Pence!” as lawmakers fled the House and Senate chambers for safety — the horrific episode has constitutional scholars and election law experts calling for reforms to the Electoral Count Act to ensure that politicians tasked with certifying votes cannot subvert the will of voters. Ambiguity concerning the role of the vice president and the ability of individual representatives to challenge states’ electoral votes are weaknesses that must be fixed.

In a political landscape where the left and right agree on almost nothing, updating the Electoral Count Act may be one area of common ground. In recent weeks, academics from across the political spectrum have urged Congress to tighten up this law before the next presidential election to eliminate existing confusion. Progressive scholars see it as a way to Trump-proof democracy. Conservatives argue the same fixes could prevent Democrats from turning the tables on the GOP (in the 2024 election, it will be Democratic Vice President Kamala Harris counting the electoral votes). They agree that the law needs to make clear that the vice president does not have the power to decide which electoral votes to count.

Lawmakers on the House committee examining the Jan. 6 attack have said they plan to recommend changes to the Electoral Count Act. The proposal will probably emerge as part of a broader set of reforms the committee suggests later this year.

Several Republican senators — including Senate Minority Leader Mitch McConnell, R-Kentucky— said that they’re open to changing the Electoral Count Act, Politico reported, and centrist Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona are also on board.

All of which is encouraging. It would be good for democracy and a true act of public service to clarify this law and ensure that future votes are properly counted.

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