Originally published at RealClearPolicy.com
Selecting a president on the basis of the national popular vote is an elemental characteristic of democracy long denied America. An amendment to the Electoral Count Act of 1887 — perhaps as a component of the pending voting rights legislation — can remedy this flaw permanently.
Republican Party violation of election norms has dramatically increased prospects for a constitutional crisis when the Electoral College meets in 2024 to select the president. As documents surrounding the January 6, 2021 insurrection attest, one element of the Republican Party’s elaborate strategy was to submit competing slates of Trump electors to the Electoral College. Recall that state legislatures and governors select slates of electors and submit those slates to Congress (by tradition but not by law, the slates represent state-wide popular vote winners).
Once the process of choosing a president moves from voters and the states to Congress, its duty in the elliptical language of the Twelfth Amendment is clear: “The person having the greatest number of votes [cast by Electors] for President shall be the President.” That task is accomplished by a joint session of Congress in early January summing these state electoral votes to affirm the winner — the step that gained notoriety on January 6th.
Since a majority of electors favored Biden, the Republican intent was to derail this process by submitting alternative elector slates from some states won by Biden. The Constitution is silent regarding such contested electors — disputes arising within state legislatures or between legislatures and governors resulting in competing electors or elector slates being submitted to Congress on behalf of a particular state. Instead, the authority to resolve disputes rests with Congress under terms of the Electoral Count Act of 1887 (ECA). (The ECA was enacted to address shortcomings revealed by the 1876 election when competing state elector slates chaotically gridlocked the process for months. Eventually the popular vote loser Hayes was picked over the winner, Tilden).
Since 1887, counting electors has been generally noncontroversial and civil; individual electors or slates of electors forwarded by states have rarely been contested until 2021. Under the Constitution and the ECA, the outcome is straight-forward: If there are few or no contested electors and if a sufficient number of electors from various states supporting one candidate sum to a majority of the Electoral College, that person is declared the winner. (As a footnote, if no candidate amasses a majority of electors, the selection of president is settled by Congress in a contingent election as set forth by the Twelfth Amendment; the newly elected House of Representatives selects the president, with each state casting one vote. This situation is highly unlikely when states are submitting competing elector slates.)
Resolving Contested Elector Disputes
If competing slates of electors are submitted from states as proposed by the Republicans on January 6th, language in the ECA resolves the dispute in this fashion: If a majority of the Senate and separately of the House of Representatives cannot jointly agree on which electors shall represent a state, the electors submitted by that state’s governor shall be certified. (On January 6th, Republicans proposed that Vice President Pence reject Biden electors from several swing states in favor of competing Trump slates. Pence lacked any authority to supplant the 1887 ECA’s provisions specifically enacted to resolve such instances of contested electors.)
Two points stand out: First, while the Constitution affirms an Electoral College and grants state legislatures the ability to select electors, Congress has had the authority for 134 years to resolve elector disputes. Second, the resolution mechanism for contested elector disputes under the ECA as currently written is vulnerable to partisan manipulation thwarting voter intent. For example, should Republicans hold the governorship in any swing state, or if they control either the Senate or the House of Representatives after the 2024 general election, that party’s partisans will be well positioned to disrupt the Congressional certification process, creating a constitutional crisis with an uncertain and possibly chaotic outcome in the Electoral College.
Don’t Waste a Crisis
A constitutionally consistent remedy for this fraught outlook that will also enhance democracy is for the ECA to mandate that contested elector disputes be resolved in favor of the elector or slates of electors supporting the winner of the national popular vote. That is, state legislatures are constitutionally obligated to select electors. When they fail, Congress cannot fairly and reasonably decide contested elector disputes in their stead, especially in a timely fashion. Thus, its default setting should be to fall back upon the national popular vote when settling contested elector disputes.
The authority for this revision of the ECA rests on the 134-year precedent of Congress setting the terms for resolving elector disputes, and the logic that those terms should promote the national interest. It also will remove the risk under the ECA as presently written for partisans to precipitate a constitutional crisis. That new dispute resolution mechanism will require a Congressional designee to determine who won the popular vote. (It should also specify how Congress concludes a contested elector event is occurring, how Congress is notified of elector disputes, and who affirms how they are resolved.)
Pulling Democracy Back from the Brink
Since the envisaged ECA amendment addresses a shortcoming in American democracy as do the pending voting rights bills, it is reasonable to combine them. That could be synergistic: Picking the popular vote winner as president is popular (68% support among independents reports Gallup), perhaps reflecting that two of the last four presidents were electoral also-rans. And its inclusion may encourage all Democratic senators to lay aside the filibuster to enact the voting rights bills.