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You’ve got to give credit where credit is due. President Donald Trump is sparking the biggest re-examination of the nuts and bolts of our democracy since the Constitutional Convention in 1787. How many of us had contemplated the ins and outs of the Vacancies Act or the proper scope of presidential power during a national emergency before Trump came along? Unfortunately, all this is missing some of the dignity of the original discussion and we’ve ended up with a sort of tabloid version of The Federalist Papers in which those of us concerned about American institutions don’t so much engage in learned debate as in frantically attempting to head off the next pending scandal.
Which brings us to the Electoral Count Act of 1887. Until a few weeks ago, this was one of the most obscure pieces of legislation on the books. The ECA governs how Electoral College votes are counted. In short, during a joint session of Congress, the vice president opens the envelopes containing each state’s Electoral College votes and hands them to two tellers from the House and two tellers from the Senate who read the votes aloud. Once all the votes have been read, the tellers add them up and announce the result. In 2013, the entire process took 23 minutes.
Republic hinges on the honor system
There is a little more to it than that. The ECA also includes procedures for challenging Electoral College votes. A challenge requires the support of at least one senator and at least one House member. The House and Senate then convene separately to debate and vote on the challenge. In order to be successful, the challenge must be upheld by both houses.
Unfortunately, the statute is not always a model of clarity. It contains multiple sentences more than 200 words long and it isn’t clear how some scenarios would be handled. Fortunately, none of these scenarios have ever come up. In the 133 years since the ECA was adopted, electoral votes have been challenged exactly twice: Once in 1969, which involved a challenge to an elector who was supposed to vote for Richard Nixon but voted for George Wallace instead, and once in 2005 when Sen. Barbara Boxer and Rep. Stephanie Tubbs Jones joined to challenge Ohio’s presidential electors. In both cases, these challenges were rejected by both the House and the Senate. In the case of the 2004 challenge, which is the closest we’ve come to the situation we’re facing Wednesday, the challenge was rejected 267-31 in the House and 74-1 in the Senate.
Trump’s efforts to overturn the 2020 election are far more serious. Based on their public statements, at least a dozen senators and over 120 House members will vote to reject Electoral College votes from various swing states. That shouldn’t happen and, if these congressional Republicans followed the terms of the ECA, it wouldn’t happen. All the election results have been certified, all the legal challenges resolved, and all the Electoral College votes cast, certified by the governors and sent to the Archivist of the United States — just as the statute requires.
And none of that matters. If members of Congress vote to reject valid presidential electors for invalid reasons, there’s nothing anyone can do about it. While we’ve never fully appreciated it until now, the ugly truth is that, despite a nationwide vote fenced with elaborate legal and technical safeguards, the president of the United States is actually elected on the honor system by 535 members of Congress.
GOP Sen. Rob Portman: No proof of mass fraud that would change election result
Despite the unprecedented number of Republicans willing to uphold a challenge, the House is controlled by Democrats and in the Senate, Republican Mitch McConnell, the majority leader, is trying to discourage the move. At least four Senate Republicans have pledged to uphold the election result: Mitt Romney of Utah, Lisa Murkowski of Alaska, Pat Toomey of Pennsylvania and Ben Sasse of Nebraska.
Blueprint for an overthrow
So Trump’s effort to interfere with the Electoral College count is going to fail — this time. But this tawdry episode is dangerous nonetheless because it provides a blueprint for the next time. And there will be a next time because it’s now clear that under the current system of counting Electoral College votes, a party that controls both houses of Congress can install their candidate as president regardless of the election results if they have the political will to do so.
Denialism 2020: Trump and his fanatical allies are electoral terrorists. It’s got to stop.
Too many of the guardrails of democracy are little more than white lines painted on the road that depend on a sense of honor, duty, and integrity that is simply no longer the norm. Republican senators and representatives who vote to uphold a challenge Wednesday will be putting their fear of Trump and his supporters ahead of their duty to the country. That’s shameful and unworthy, but that’s the political world in which we now find ourselves.
Our current system of checks and balances is inadequate for the challenges we now face, and it isn’t just the Electoral Count Act that needs updating and strengthening. The Guardrails of Democracy project has identified dozens of cracks and holes in our constitutional infrastructure that require urgent repair. Don’t let Trump’s buffoonery lull you into a false sense of security. The next time some authoritarian wannabe takes a run at the Constitution, they’ll be playing for keeps.
Republican Chris Truax, an appellate lawyer in San Diego, is a legal adviser for The Guardrails of Democracy Project, CEO of CertifiedVoter.com and a member of USA TODAY’s Board of Contributors.
You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.
This article originally appeared on USA TODAY: Trump and Republicans reject Biden win, expose weakness in US democracy
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