Today, three reforms matter above all: clearly defining the role and powers of the vice president, of Congress and of the states in electing the president. All three are central to achieving the fundamental goal, which is to ensure that voters, and not partisan political officials, get to choose their leader.
Let’s take each of the players in turn.
First, the vice president. Contrary to the self-serving fantasies of Mr. Trump and the lawyers who schemed with him, like John Eastman, the vice president’s role on Jan. 6 is a straightforward one. Starting at 1 pm, the job is to open the envelopes and announce the electoral-vote counts from each state, in alphabetical order, then call for any objections. That’s it.
She or he has no authority to unilaterally reject electors from the states. The law already lays out this process, but its outdated language is vague and should be clarified in a way that leaves no room for mischief.
Next, Congress. The national legislature has many responsibilities, but sitting as a presidential-recount board is not one of them. Whenever a state submits a single, uncontested slate of electors, as all 50 states did in 2020, Congress’s job is to accept it. The problem is that the Electoral Count Act makes it easy to throw a wrench in the works by allowing objections to a state’s submission if only a single senator and a single representative sign on. This sets off hours of debate and delay – a recipe for chaos, as Senators Ted Cruz and Josh Hawley demonstrated with their grandstanding around baseless allegations about voting irregularities that had been rejected by every court to consider them.
To avoid a repeat of this shameful and reckless behavior, Congress should raise the bar significantly – by requiring the assent of one-quarter or even one-third of both houses to lodge an objection, and a supermajority to sustain one. It should also strictly limit the grounds for raising an objection in the first place.
What if a state submits two conflicting slates of electors? And what if the two houses of Congress disagree over which slate is valid? That’s a different sort of problem, and while it did not happen in 2020, it did in 1876 and could cause a major crisis again in 2024 – if, say, a Trump-aligned governor who believes that election was stolen refuses to certify a valid popular-vote count that favors the Democratic nominee, and instead authorizes his state’s Republican electors to cast their ballots for Mr. Trump. (Think that sounds crazy? Then you have not been listening to David Perdue, the former senator running for governor of Georgia.) In such a scenario, the Electoral Count Act needs to make it clear that Congress should accept the electors who were chosen in accordance with state law.
This is where the courts, and especially the federal courts, play an essential role. The law should leave no doubt that judges – and not political actors – have the last word in resolving any vote-counting disputes that arise between Election Day and mid-December, when electors meet in state capitals to cast their ballots.