The 1887 Electoral Count Act Must Be Amended

Americans always have taken for granted the sanctity and integrity of our electoral system. For decades, we routinely have sent observers to countries where democracy is a new thing to ensure that those nations conducted their elections on the up-and-up, using our electoral system as a model.

America’s democratic process, we have assumed, is the gold standard for democracies around the world. We never considered that our own democracy, the world’s oldest, was anything but rock-solid.

However, the 2020 Presidential election upended all of those assumptions. It turns out that what we had thought were firmly-embedded procedures are not so clear, and could be subject to a wide range of interpretation.

This lack of clarity is thanks to an arcanely-worded statute, known as the 1887 Electoral Count Act.

The Act was enacted by Congress in 1887, 10 years after the disputed 1876 presidential election, in which several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock for weeks. Though it took Congress more than 10 years to finally pass the act, the effort to clarify some of the ambiguities contained in the Constitution concerning the Electoral College only served to create deeper ambiguities.

Up until 2020, there never had been a serious challenge to the results of a presidential election. However, as we all know by now, former President Donald Trump, aided and abetted by a large number of members of Congress, attempted to use the lack of clarity in the Electoral Count Act to overturn the Electoral College results of five states.

Fortunately, Trump’s shenanigans — as usual — were neither well-organized nor well-focused. Further, vice-president Mike Pence was not willing to be a participant in Trump’s charade.

However, Trump’s gambit brought to the attention of legal scholars and our elected officials the potential for unscrupulous — and better-organized — actors to wreak havoc with our democratic process. All of us have come to realize that the guard rails that we had thought existed to protect our democratic norms are nothing more than a chimera.

Amending the 1887 Electoral Count Act is a non-partisan issue. Future Democrats are equally as likely as future Republicans to try to exploit the weaknesses of the act to the detriment of our democracy.

We urge both of our U.S. Senators, Ed Markey and Elizabeth Warren, as well as our members of Congress, to join with Republican colleagues such as Maine Senator Susan Collins to amend the act expeditiously. In view of the events that took place in the aftermath of the 2020 election, this is the most urgent business that Congress can undertake in order to preserve the viability of our democracy

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