The public strongly wants to reform the confusing law that former President Donald Trump tried to use to reject slates of presidential electors certified by state governments.
That’s the conclusion from a new poll, which was jointly conducted by a Democratic and a Republican strategy group so as to deter partisan biases. This Washington Examiner column reports the poll for the first time, before its general public release.
At issue is the Electoral Count Act, the 1887 law with deficiencies I and others, Right and Left, have limned at length this year. It is the ECA that establishes the convoluted procedure by which Congress should resolve (alleged) discrepancies about state electoral slates. The confusing language and elaborate procedure are what allowed Trump lawyer John Eastman, who has since disavowed his own advice from back then, to argue, ludicrously, that Vice President Mike Pence had the authority to reject some of the pre-certified state electoral lists.
As I argued in September, there is no way to know which party in the future will be in a position to misuse, or to suffer from misuse of, the bewilderment caused by what one top legal scholar described as the ECA’s “turgid,” “repetitious,” and seemingly “contradictory” language. Therefore, both parties should want to clarify and simplify that law.
Now, a poll urges the parties to do just that. It was conducted jointly by the GS Strategy Group, which usually works for Republicans, and ALG, which usually works with Democrats. Those polled were provided a bare-bones sentence identifying the ECA as the law governing the counting of Electoral College votes, followed by this accurate and mostly neutral, although perhaps slightly leading, sentence: “The proposed update would establish more clearly defined rules for Congress and the vice president to follow when counting Electoral College votes in January, and [emphasis added] would make it more difficult for members of Congress to reject a state’s certified election results.”
As most Republicans are fully aware that the pro-Trump faction in Congress was asserting its ability to do just that, one might expect Republicans to want to keep the ECA as is. They don’t.
The results were overwhelmingly in favor of reform, with 62% of those polled in support and just 18% opposed. Democrats support reform 76% to 7%, independents support it 56% to 17%, and Republicans, too, are in favor, 52%-28%.
Yet, as mentioned above, the reform movement should be nonpartisan, so it will focus on a clear and effective process rather than an attempt by one party to stack the deck. The poll showed overwhelming insistence, 63% to 9%, that the new law be co-written by the two major parties. On this, Republicans, at 63% support, match the overall numbers.
When pollsters drilled down, voter concerns became even more clear. By a 58% to 25% margin, voters believe “there should only be a narrow set of circumstances that allow Congress to reject a state’s certified presidential results rather than having broad power to reject these results.”
When lawmakers in 1877 wrote the ECA, even the little discretion the law gave to Congress was intended as a failsafe at a time when technology was less advanced and officials could find it more difficult to ascertain results from isolated, far-flung locales. Even for those circumstances, the law was written poorly. Now, with advanced technology and instant communications, there is very little legitimate reason Congress should have any discretion in the vote count at all.
Updating the law should benefit everyone. Congress should make it a priority now, when the next presidential election is still more than three years away.
