Is the Senate anti-democratic? Is the electoral college some absurd arcane contraption, the existence of which not only defies the notion of majority rules but invites gamesmanship, if not a coup should we have a president so unworthy as to consider such a thing? Well, yes. There are reasons why these things exist, why the system was crafted the way it was in order to create any union, no less a more perfect one, because without the Senate, without the electoral college, would there be a United States of America at all?
On Wednesday, a bipartisan group of 16 senators, led by Susan Collins of Maine and Joe Manchin of West Virginia, released the text of a new bill intended to make it harder to overturn the results of a presidential election. A direct response to Donald Trump’s multipronged attempt to stay in power, the bill is meant to keep a future candidate for president, including a losing incumbent, from following the same playbook.
Jamelle Bouie hasn’t had much good to say about the structure of American government in quite a while. He doesn’t like it and uses his soapbox to explain why it’s wrong, it’s undemocratic, it’s archaic, it’s the product of racism and exists to perpetuate it. But he’s not hating on the Electoral Count Act.
At its heart, the bill is a major revision of the 1887 Electoral Count Act, which Trump and his legal team tried to exploit to create confusion over the certification of electors and the counting of electoral votes. Specifically, Trump pressured Republican state legislators in key swing states he lost to throw out votes and send false slates of electors in place of those won by Joe Biden. He then coordinated with allies in Congress to object to the counting of Biden’s electors and pushed former Vice President Mike Pence to toss out those electors and, if needed, move the election to the House of Representatives, where Republicans controlled enough state delegations to keep him in office.
The problem wasn’t lack of clarity as to what was supposed to happen on January 6th and what the scope of the Vice President’s authority was, at least not for people remotely familiar with the law and not delusionally determined to create some magic, never before noticed, loophole to undermine the entirety of the presidential electoral college process that would allow the VP to reject the election and just, you know, annoint Trump. As if that would have gone down easy.
The bill would address each part of the scheme. It would require states to choose electors according to the laws that existed before Election Day and prevent state legislatures from overriding the popular vote by declaring a “failed election.”
The bill would make it clear that each state can send only one slate of electors to Congress. It would require the governor (or other designated official) to certify the winning candidate’s electors before a specified deadline, to try to prevent postelection manipulation. If a state tries to subvert this process, the bill sends the dispute to a panel of federal judges. Candidates can then appeal the judges’ decision to the Supreme Court on an expedited basis.
As for Congress, the bill makes clear that the vice president has only a “ministerial” role in the counting of electors and raises the bar for objections, from only one member in each chamber of Congress, to one-fifth of all members in both the House and Senate.
Bouie likes the bill, for what it is. I’m not quite as sanguine, as I can foresee Trumpy types in the future trying to steal elections with roadmaps laid out for them in pictures and small words, giving rise to a “failed election.” Just because we didn’t have one before doesn’t mean we won’t in the future. Maybe the near future.
But if spelling it out in small words will somehow get it through John Eastman’s head (I jest; he knew damn well that his scheme was legally absurd. He may be venal, but he’s not stupid.) that the election is a done deal by the electoral college count, that wouldn’t be a terrible thing. Even Bouie says so, right?
The fact that an entire national election can turn on a few thousand votes in a handful of states is a powerful incentive to restrict the votes of your opponents and meddle with the process all the way down to the precinct level. The fact that the loser of the national popular vote can become the winner of a national election is an additional incentive to subvert the voting process and impede access to the ballot box. And the fact that a legislature could, before the election itself, simply allocate electors to the candidate of its choice without any input from the public is an ongoing and ever-present threat to electoral democracy.
So while Bouie is good with the changes in the Electoral Count Act, it won’t change the fact that he rejects the American system of electing a president because it’s yielded presidents from the other team, ultimately culminating in Trump. That Obama got elected, and then Biden got elected, doesn’t change anything. That Trump could ever get elected is proof enough that the foundational system of electing a president by what was originally our 13 colonies and now our 50 states, not as individual voters (I might have used the word “citizens” years ago, but no longer) of a nation, decide who will be the federal big guy is wrong and produces wrong results, and so must be changed in favor of a popular vote system that ignores that these were the united “States,” a combination of independent regimes who chose to join together to some extent for their mutual benefit.
Maybe the system created for a bunch of colonies way back when isn’t the best system for us today. There is much that exists today that was never contemplated then, and the world has certainly gone through vast changes since 1789. But this is the system upon which this nation was founded, and upon which the colonies, and later states, chose to combine. This isn’t some evil scheme designed to deny Bouie’s candidate the win or hand it over to the worst person ever, but the basis upon which this nation exists. Without it, he might be griping in a foreign accent.
Remember when the president and vice came from different parties?
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