The Threat to Democracy — From 1887

Some people dwell in the future.

The 2024 presidential election isn’t here yet; the 2020 midterm is 11 months away. But Republicans are already joyously counting the margins of their newly hatched majorities in the House and Senate and a turnover in occupancy of the White House, while Democrats are already depressed over the coming debacle.

This, despite the fact that nobody knows whether Joe Biden or Donald Trump will be running in 2024. Not even they themselves know. The only sure candidates as of now are Ted Cruz (by dint of his own eager statements) and Stacy Abrams (no matter what she says about if elected Governor of Georgia in November she will serve the full term), which does nothing to decrease the uncertainties.

The only element in the coming elections that can be anticipated with any confidence is a probability that the post-election phase will be fraught with recounts, accusations of stolen votes and lawsuits. There is also reason to fear possible violence.

At the moment, it seems there’s no way to avoid it. Both Republicans and Democrats are zealously maneuvering to gain the upper hand in redistricting, voting regulations and certification of electors, in order to manipulate the outcomes, or as they would have it, prevent the other side from carrying out their evil machinations.

There is, however, a way in the here-and-now to mitigate the prospects of what could well be a catastrophic downturn in American democracy.

Much of the problem — and the solution — lies in the Electoral Count Act of 1887.

This law was passed in the wake of the Hayes-Tilden crisis of 10 years prior, in which Congress was deadlocked for weeks over certification of the Electoral College until a controversial political deal gave Hayes the presidency.

It was supposed to provide an orderly framework for counting electoral votes and certifying electors, but the ECA itself was passed amid passionate partisan wrangling and labored compromises. It has proven over the years, not only in 2020, to be a dangerous jumble of ambiguity open to partisan interpretation and a subversion of the democratic process.

The ECA’s deficiencies are well-known and have become the subject of intense discussion in legal circles: Its ill-defined parameters allow Congress too much latitude to try to override a state’s vote count, a loophole that seems to endow the Vice-President with unilateral authority to decide issues in dispute (which then VP Mike Pence refused to do, despite heavy pressure), the question of whether a state can hold an election after Election Day if it claims that Electoral College results were flawed, whether a state certifying its electors before a certain date can later have its decision overturned by Congress, lack of any clear pathway to resolve disputes between the House and Senate over how to finalize an election, and more.

Legal experts across the political spectrum have been urging Congress to act now to formulate an update to the ECA that could help avert a chaotic outcome in 2024.

Such a revision of the law would seem to have broad public support. A poll released jointly in October by the good-government groups Issue One, the Campaign Legal Center, Protect Democracy and RepresentUs, found that 62% of voters are in favor of curbing Congressional power to change a state’s declared electoral result.

According to the poll, three-quarters of Democrats said they somewhat or strongly favor reforming the Electoral Count Act. More than half of independents (56%) and Republicans (52%) also indicated support. Nearly two-thirds of voters said they wanted the reforms to be conducted in a bipartisan manner.

Unlike amending the Constitution — which requires a two-thirds vote of Congress and ratification by three-fourths of the states, a protracted and extremely difficult process — the ECA is a congressional act which can be rewritten by Congress. That makes it doable before 2024.

These days there is considerable talk about threats to democracy. Some Democrats point to a Trumpist conspiracy to take over the electoral system; Trump supporters perceive the danger in a leftist takeover. Both sides foresee a major constitutional crisis in the making.

The Electoral Count Act, originally intended to safeguard democracy, has itself emerged as a threat to democracy, a giant loophole that you could drive a sound truck through. A timely reform of the ECA will not guarantee peace and harmony on November 5, 2024, but it might be just enough to make a crisis manageable.

It has been said that democracies only act when the people perceive an emergency immediately at hand — a Depression, a Pearl Harbor, a September 11.

January 6 did not equal any of those events, but in the coming weeks and months, the congressional committee probing the riot will be releasing their findings. Presumably, the public will then have a chance to learn just how bad it really was.

It was far from a full-scale insurrection, even if some of its organizers deludedly intended that; but it may well have been a serious enough breach of national peace to awaken a slumbering democracy.

America should not dwell in the future. But it should prepare for it. Now is the time.