Good faith elections of US presidents

As the Jan. 6 committee probes the Capitol attack, a group of senators tries to repair a law that was behind the attempt to overturn the 2020 election.

Speaker of the House Nancy Pelosi and then- Vice President Mike Pence officiate at a joint session of the House and Senate on Jan. 6, 2021, to count the Electoral College votes cast in the 2020 election.

In a few weeks a congressional panel will hold public hearings on the violent attempt last year to disrupt the formal certification of the 2020 presidential election. The Jan. 6 committee’s immediate goal will be to share what it has learned about who was behind the attack on the Capitol and whether it was organized or spontaneous. Those findings may help promote accountability and help clarify why, for instance, it took so long for additional security forces to be deployed.

But experience has shown in countries where truth commissions have followed periods of violent conflict that restoring divided societies requires more than sunlight. “To rebuild lives without fear of recurrence and for society to move forward, suffering needs to be acknowledged, confidence in state institutions restored, and justice done,” Michelle Bachelet, United Nations high commissioner for human rights, has observed. “Without humility and modesty, the risks of failure are real.”

On Capitol Hill, those qualities may be restoring more than trust across the aisle. They are impelling what may turn out to be the most important result of this Congress: the renewal of what historian Joseph Ellis calls “the great achievement” of America’s constitutional design – its unique and uniquely frustrating sharing of power between the states and federal government.

While the Jan. 6 committee has drawn more public attention during the past year, small working groups in the House and Senate have been drafting reforms to an 1887 law called the Electoral Count Act. The law attempted to clarify the roles and authority of state governments and Congress in the conduct of choosing a president, a decade after the disputed presidential election of 1876. It spelled out how states were supposed to choose electors to the Electoral College based on the popular vote, and how Congress is supposed to count those slates of electors.

The statute provided the basis for the Supreme Court’s decision in Bush v. Gore to resolve the 2000 presidential election. It also provided the basis for disputing the 2020 results by giving Congress power to oppose electors if a member from both the House and Senate had reasons to question their legitimacy. Critics have long decried the law as unconstitutional.

Since January at least 16 senators have come together to redraft the law. Their proposals reflect more than a desire just to fix old and muddled English. The different versions would require significantly more than one member from each chamber to raise objections to slates of state electors. That may be an acknowledgment that Congress itself has some blame to bear for the events of Jan. 6.

“I think sometimes when the going gets tough we just say, ‘That’s too hard,’ and we retreat to the party messages,” Sen. Lisa Murkowski, the Alaska Republican, told CNN. “But we have got to get to the place where we understand one another. And you can’t get to understanding without listening.”

That sense of deference and civility may be why the push to reform the law is happening largely out of public view. It reflects what the framers of the Constitution may have had in mind when they rejected a system of consolidated power. That diffusion of authority between the states and federal government, argued Gouverneur Morris, a delegate to the Constitutional Convention from Pennsylvania, perpetuates an argument that can only be resolved through “the good faith of the parties.”

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