ELECTION SECURITYJan. 6 Hearings Highlight Problems with Certification of Presidential Elections and Potential Ways to Fix Them

By Derek T. Muller

Published 1 July 2022

The televised hearings held by the House Jan. 6 Committee highlighted the lack of clarity regarding how Congress counts presidential electoral votes — a lack of clarity which was exploited by former president Donald Trump in his attempt to overturn the results of the presidential election. Members of Congress publicly aired baseless claims that the election results were in doubt, while Vice President Michael Pence was pressured to exercise power he does not have to unilaterally refuse to count electoral votes from some states or indefinitely delay counting. Congress cannot prevent all mischief, but it can reduce the possibility of mischief in the future.

Lack of clarity in how Congress counts presidential electoral votes was highlighted in recent public hearings held by the Select Committee to Investigate the January 6th Attack on the United States Capitol. Lawmakers and witnesses in those hearings also focused on how ambiguities in existing election laws were exploited in 2020 in an attempt to overturn the results of the presidential election.

Some legislators are interested in reforming the federal law that governs that process, the Electoral Count Act.

Reforming the act, which sets the procedures for how votes for president are counted in the Electoral College, means identifying what it’s supposed to do, the areas that need reform and any other problems with it.

As a scholar of election law, I recognize that presidential elections in the United States are complicated. Voters do not directly elect the president. After Election Day, and based on the popular vote, each state chooses presidential electors who formally meet and cast votes for president that are then relayed to Congress. There are 538 electoral votes, and after Congress counts them and verifies that one candidate has received a majority – at least 270 – the winner of the presidential election is declared.

In theory, a rule about how to count votes seems easy enough. But it’s hardly been easy.

Abusing the Act
During Reconstruction, the period after the Civil War, Congress faced contentious questions over whether Southern states appropriately appointed presidential electors. At other times, two sets of competing electors for different candidates were sent to Congress.

The Electoral Count Act was enacted in 1887 to streamline rules after the disputed presidential election of 1876.

But in recent years, the act has revealed some weaknesses.

The act allows members of Congress to object to counting votes from a state. They can do that if one member of the House and one Senator write an objection. The Electoral Count Act does not list what kind of objections are proper, leaving it to Congress to decide if objections are appropriate or not. If this kind of dispute arises, Congress can debate what to do with the electoral votes.

The objection mechanism was used just once in the first 100 years of the act.

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