Congress counting the Electoral College votes following a presidential election is supposed to be a routine formality, but today, it faces an unprecedented challenge—merely the latest in a series of attempts by the losing candidate to undermine the decision of the American people since November 3.
Institutions and laws of the 18th and 19th centuries, including the Electoral College and the Electoral Count Act of 1887, are being misused today to attack American democracy in the 21st century.
Practically speaking, it doesn’t seem that today's Joint Session of Congress will overturn the will of the voters. CLC has posted an explanation of today's proceedings on our website, and I joined the National Task Force on Election Crises for a press briefing yesterday to discuss the Joint Session, which you can listen to here if you are interested.
However, the objections to certified election results today highlight the real dangers to our democracy. They suggest that if political circumstances were different, the flaws in the Electoral College system could be destabilizing.
We need to fix the weaknesses revealed this year, before they are successfully exploited in a future presidential election.
My esteemed colleague and Harvard Law Professor Charles Fried, who served as solicitor general under President Ronald Reagan and is a member of CLC’s board of directors, joined me to write an op-ed published this morning in The New York Times. I share an excerpt with you below.
The 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea. Joe Biden’s clear victory has been followed by attempts by the incumbent president to induce Republican legislators and other elected Republican officials in five states he lost to ignore the certified vote counts in their states and substitute their partisan preferences for the voters’ decision. Now Congress will formally receive the electoral votes, after a series of attempts to subvert the democratic process, all made possible by the Electoral College.
…
When the Electoral College was created, many conceived the United States as a confederation of “sovereign states.” And only a small percentage of the adult population could vote at all — property-owning white males in many states — and senators and the president were not elected by popular vote. Today the country is one of the longest-lasting democracies in the world, with almost all adult citizens entitled to vote for the president and members of Congress — our Constitution and body politic are not what they were in 1787.
The presidential election is really 51 elections, each conducted and certified by its jurisdiction. Those who support the continued use of the Electoral College system say that the states “speak” to one another through it and so it performs a vital role in promoting national unity and the constitutional system.
But the multiple challenges to the votes of the people this year — expressed through the states and their votes in the Electoral College — teach us that the Electoral College is a fragile institution, with the potential for inflicting great damage on the country when norms are broken. Many of the attempts to subvert the presidential election outcome this year are made possible by the arcane structure and working of the Electoral College process and illustrate the potential for the current Electoral College to promote instability rather than the stability the framers sought.
The nonpartisan Campaign Legal Center advances democracy through law at the federal, state and local levels, fighting for every American’s rights to responsive government and a fair opportunity to participate in and affect the democratic process.
