Why Republicans Won�t Help Fix the Law That Produced Chaos on January 6

After the chaos of the 2020 presidential election, you�d hope the one
thing that Democrats and Republicans would agree on is the need to clear
up the laws that allowed for its messy conclusion. The congressional joint
session on January 6 that provided the opportunity for an insurrection,
multiple deaths, and a near�constitutional crisis illustrated the
inadequacies associated with the statute that governed it: the Electoral
Count Act of 1887, the little-noticed (prior to this year) and much-
criticized statute put in place after the contested presidential election
of 1876.
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The ECA has provisions that are unclear (e.g., the precise role of the
vice president who chairs the joint session that counts electoral votes
and confirms the election results), illogical and pernicious (e.g., the
low threshold for launching an electoral vote challenge, and the implied
openness to competing slates of electors), or simply archaic (the
procedures for state certification of electoral votes developed for the
era when the votes were literally stored in strong-boxes and physically
transferred to Washington before they were known).

There�s nothing particularly partisan about the idea floating around in
academic circles for cleaning up the 1887 law before its next deployment
in 2024. And indeed, an array of conservative opinion leaders (including
National Review�s Dan McClaughlin, the Cato Institute�s Walter Olson, and
Bloomberg View�s Ramesh Ponnuru) have urged support for common-sense
reforms of it. Perhaps most notably, Republican election lawyer par
excellence Ben Ginsberg argued this week that the fuzzy law may not work
to the advantage of GOP candidates in the near future:

Republicans should be in favor of clarifying the system now, if for no
other reason than they will not be in as strong a position as they were in
2020.

For starters, a Democratic vice president will be presiding over the
Senate when the Electoral College votes are opened. Suppose Trump runs
again, and wins. Now, suppose Vice President Harris believes that Trump�s
reelection represents an existential threat to the county and does what
Trump couldn�t persuade Mike Pence to do �

Neither party should think that it can game the system by using the
ECA. In fact, of all people, Donald Trump should realize that what goes
around often comes around. What seems advantageous in one electoral
context often creates unintended consequences down the road.

Despite such warnings, the project of reforming the ECA is languishing in
Congress due to a lack of GOP support, as the New York Times reported
earlier this week. It�s as good a time as any to ask why congressional
Republicans don�t seem interested (so far) in this urgent project. There
are three issues that would-be reformers must overcome:
The impetus for reform is coming from a January 6 inquiry Republicans are
dead set against

As I understand it, quiet discussions have been undertaken with Senate
Republicans for months about fixing the law. But the case for doing
something before 2024 has gone public primarily as a project of the House
Select Committee to Investigate the Attack on the U.S. Capitol. The
establishment of that committee, of course, was bitterly opposed by most
House Republicans, and you cannot imagine many partisan GOPers reacting
with anything other than disdain for the members of Congress quoted in the
recent Times report as calling for ECA reform:

�There are a few of us on the committee who are working to identify
proposed reforms that could earn support across the spectrum of liberal to
conservative constitutional scholars,� said Representative Adam B. Schiff,
Democrat of California and a member of the Jan. 6 committee. �We could
very well have a problem in a future election that comes down to an
interpretation of a very poorly written, ambiguous and confusing statute.�

Representative Liz Cheney, Republican of Wyoming and the vice
chairwoman of the committee, said on Thursday that �the 1887 Electoral
Count Act is directly at issue� and that the panel would recommend changes
to it.

It�s unclear whether the bulk of Republicans hate Schiff or Cheney more
fiercely.

More generally, Republicans in both chambers of Congress and the party
rank-and-file are said to be eager to �move on� from January 6, shifting
the focus instead to the alleged bad governance of Joe Biden and
congressional Democrats. You cannot talk about fixing the Electoral Count
Act without talking about what happened on January 6.
Team Trump claimed the ECA is unconstitutional and hence irrelevant

The official Trump attitude towards the Electoral Count Act was expressed
forcefully by Trump advisor John Eastman, whose infamous memos laid out a
strategy for an election coup in the fateful days leading up to January 6.
According to Eastman, the statute is unconstitutional on two separate
grounds. First, he claimed, its provisions for counting electoral votes
violate the 12th Amendment�s unconditional grant of authority to the vice
president to deal with electoral votes however they want. Second, Eastman
echoed the repeated arguments of Trump�s lawyers that the ECA�s state
certification procedures violates the absolute and exclusive power of
state legislatures to regulate both federal elections and the choice of
presidential electors under Article I of the Constitution.

It seems unlikely that the president who once said, �I have an Article II,
where I have the right to do whatever I want as president,� has the
beginning of a clue regarding the constitutional arguments of his own
lawyers. Nevertheless, the radical argument for the unconditional powers
of the vice president and state legislatures that Eastman advanced is
official MAGA gospel. The first argument will likely be dropped by
Republicans in 2025 if there is a contested election, since Kamala Harris
will be sitting in the same seat occupied by the perfidious Mike Pence in
2021. But the second argument, that Republican-controlled state
legislatures can overrule governors, election officials, and even voters
in determining election outcomes could still be in play.
Trump is a horse who prefers a muddy track

So long as the Republican Party remains in thrall to Donald Trump and
resigned to his likely 2024 comeback plans, its elected officials may be
reluctant to do anything to clarify election procedures. For all the
mostly specious arguments the 45th president and his allies advanced
before and after the 2020 elections about voter fraud and the �Democrat
steal,� his real strategy was to sow doubt in the integrity of the
process. He wanted to make last November and future elections a test of
partisan will, and he succeeded to a terrifying extent. Would he now
discard any of that hard-won doubt by supporting a clarification of a key
element of the presidential election machinery?

Perhaps Trump will surprise us by at least staying out of the way of
Electoral Count Act reform efforts. Or perhaps congressional Republicans
will summon the will to fix the 1887 statute in the reasonable expectation
that the subject is too obscure and technical to arouse MAGA suspicions.
But time�s running down if not out for dealing with much of anything in
the hotly disputed arena of election and voting laws. A little
disinterested patriotism from members of Congress in both parties is in
order, but it probably won�t be forthcoming.

On Wed, 12 Jan 2022 23:20:04 -0000 (UTC), "Demented Joe Defeats tRUMP
Again!" <jthonq@gmail.com> wrote:

>
>Why Republicans Won’t Help Fix the Law That Produced Chaos on January 6

Only idiots (that is, Democrats) think a "law" caused the January 6
Mostly Peaceful Protest.