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Trump has proven that these 19th century election laws are ticking time bombs


The House committee hearings on January 6 raised two overarching questions. Number one: Will the Justice Department indict and prosecute former President Donald Trump for leading a criminal conspiracy to steal the 2020 presidential election? The second: Will Congress enact essential reforms to protect our democracy from a future presidential coup attempt or insurgent attack on the US Capitol?

Only Attorney General Merrick Garland can answer the first question. Congress is now considering the second.

Only Attorney General Merrick Garland can answer the first question. Congress is now considering the second.

A bipartisan group of senators led by Sens. Susan Collins, R-Maine, and Joe Manchin, DW.Va., on Wednesday proposed two measures that would significantly reform the flawed 19th-century laws that still govern US presidential elections. Amendments are to be made to the Presidential Election Day Act of 1845 and the Voter Count Act of 1887, into which the 1845 Act was incorporated.

The proposed bills open the door for the Senate to fix the serious problems with those laws — problems alarmingly dramatized by Trump’s attempted presidential coup. It is increasingly clear that loopholes in the 1845 Act and problems with the Voter Count Act were at the heart of Trump’s efforts to steal the 2020 election.

The Collins-Manchin proposal must be carefully considered to ensure that it will prevent future presidential coup attempts. It will also take 10 Republican senators to oppose a filibuster and no opposition from Republican Senate Leader Mitch McConnell to advance to the Senate.

In addition, Vice Chair of the Jan. 6 panel, Rep. Lynn Cheney, R-Wy., and Lead Rep. Zoe Lofgren, D-Calif. released a statement late Wednesday saying the panel would propose its own bipartisan solution to fix the voter count law.

Congress has the power under Article 2, Section 1, Clause 4 of the Constitution to determine when presidential electors are chosen. The 1845 law sets the official day for the quadrennial presidential election in which voters choose voters. It also provides that if a state “has not made a choice” on Election Day, the state’s presidential electors may be chosen “in such manner as the legislature of such state may direct.” There is no definition of what “did not elect” requires.

That means a state legislature could simply rule that voters “have made no choice” based on allegations of widespread voter fraud — or whatever grounds the legislature chooses. He could then substitute his own choice of presidential voters for the voters chosen on Election Day.

Trump has proven that these 19th century election laws are ticking time bombs

Sounds far-fetched?

It was – until Trump and coup strategist John Eastman tried to use this loophole to undo Joe Biden’s victory.

We heard at the June 23 session of the House January 6 committee how the planning and conspiracy unfolded. Former acting attorney general Jeffrey Rosen and former acting deputy attorney general Richard Donoghue testified about a letter that Jeffrey Clark, then acting head of the Justice Department’s civil division, pressed them designate.

The letter claimed – incorrectly – that the Justice Department had identified significant concerns about voting irregularities in several states, including Georgia. Once the letter was signed, Clark, working on Trump’s behalf, planned to send it to the Georgia governor, House speaker and acting Senate president — all Republicans.

To resolve this fabricated problem, the letter proposed that a special session of the Georgia Legislature be called. He would then ‘evaluate the irregularities’ and ‘take all necessary steps’ to ensure the correct voters list is sent to Congress – i.e. the Trump list, even if Biden won the state. .

The letter cited the loophole in the 1845 law as a basis for the Georgia legislature to overrule electors and choose its own presidential electors.

More importantly, the letter cited the loophole in the 1845 law as a basis for the Georgia legislature to overrule electors and choose its own presidential electors. The letter said the law “explicitly recognizes the power of state legislatures to appoint voters” when voters “have not made a choice” on Election Day.

Clark’s proposed effort also involved the Justice Department sending similar letters to other battleground states with Republican-controlled legislatures.

Rosen and Donoghue flatly refused to sign the letter – and a constitutional crisis was averted.

The plan, however, charted a course for future coup plotters. They wouldn’t even need the Department of Justice. State legislatures could do it themselves — and many key battleground states are now controlled by Republicans.

The “no choice” loophole in the 1845 Act is a ticking time bomb. Reform is essential to eliminate it and deprive state legislatures of the ability to overrule voter choice.

A second serious problem in 19th century laws was illustrated by Trump’s January 2021 phone call to Georgian Secretary of State Brad Raffensperger. Trump spent an hour pressuring the state official to change Georgia’s presidential vote count. “All I want to do is this,” Trump said on the call. “I just want to find 11,780 votes, which is one more than we have because we won the state.”

Trump has proven that these 19th century election laws are ticking time bombs

In other words, Trump tried to get Raffensperger to rig the vote. Raffensperger refused.

Trump’s call certainly appears to violate both federal and Georgia state law. But this case shows how a rogue secretary of state or other empowered state official could certify bad presidential voters or refuse to certify voters.

A presidential candidate aggrieved by such an action must be able to effectively challenge this in court. The precise reform provisions of the voter count law must be spelled out clearly to avoid any vagueness that could create ambiguity – and thus create new opportunities to overturn a presidential election.

Reforms should provide a specific cause of action to challenge erroneous certification or lack of certification. They should also provide for the right to expedited review by the Federal Court.

And the aggrieved presidential candidate needs timely relief, as a new president must be certified on Jan. 6, just two months after Election Day. This does not leave much time for legal action.

The plot to steal the 2020 presidential election was eye-opening. Congress must act now to ensure that any future attempt to steal the presidency does not succeed where the first failed.



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