By Noah Feldman / Bloomberg Opinion
It’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results.
Congress will meet Wednesday to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of Congress have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election.
I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful.
The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself.
If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed.
The key vulnerability here arises from the Electoral Count Act, which dates to 1887. It allows members of Congress to object to the submitted votes from the state electors, triggering debate on whether to count those votes.
The good news is that the law requires majorities in both the House and Senate to reject the electoral votes sent by the states. That’s not going to happen in 2021 because Democrats control the House. But here’s the bad news: Only the happenstance that Democrats control the House is stopping Republicans from stealing the election.
We can’t blame this solely on a flawed law. Where states have sent in a single slate of electors, it allows Congress to reject those votes only if it they weren’t “lawfully certified” by the governor or “regularly given” by the electors. Neither of these conditions applies to the 2020 vote, but that hasn’t stopped Republicans from making groundless accusations.
And so it’s too easy to foresee a scenario in which both houses of Congress were controlled by the same party and claimed some electoral votes weren’t “lawfully certified” or “regularly given.” The Supreme Court wouldn’t necessarily intervene, because the power to count the electoral votes is clearly given to Congress by the 12th Amendment.
That’s how we could end up with a situation where the legislature thwarts the people’s will, violating the basic principles of democracy.
What’s so troubling is that Republicans know all of this; and yet are still prepared to act against both the rule of law and the core value of democracy: counting the people’s votes. Hiding behind the assertion that their constituents don’t believe Biden won is no excuse. You can’t credibly claim to be listening to the people if the people are telling you to ignore the actual electoral outcome. That way lies disorder, disarray and democratic failure. Would-be dictators always abolish democracy by saying they’re just following the people’s will.
The takeaway for the future is twofold. First, the Electoral Count Act needs a revision that makes it even harder for a party to steal an election. That could possibly include a provision specifically giving the power of judicial review to the Supreme Court to ascertain that the law has been followed.
In general, I don’t think it’s a great idea to rely on the court to protect democracy, considering it’s an unelected body that could itself subvert democracy under some conditions. But at this point, it seems like a necessary check on Congress.
Second, we have to confront the reality that, no matter what electoral law might say, our constitutional architecture itself may need an overhaul.
We’ve arrived at an era where a lot of the voting public can be easily convinced that accurate election results are a lie. Short-sighted politicians therefore have an incentive to undermine those results even further. And those politicians, under the Constitution, certify our election results.
Most modern democracies solve this problem by putting an independent electoral commission in charge of certifying results. It may finally be time to update the Constitution by amendment so that the foxes are no longer guarding the henhouse.
Readers of this column know that I rarely call for constitutional amendments. They are hard to pass, so it’s often not realistic to demand them. Also, Burkean gradualism and institutional evolution have protected U.S. democracy successfully in the past, at least from the threat of coups.
This time is bit different. Once a significant number of elected members of Congress have shown they are willing to flout the people’s will, even symbolically, democracy itself is in danger. Democracy requires trusting the people and listening to their will. Nothing is more basic than counting their votes honestly. The states have done that. If Congress proves it can’t be trusted to do the same, it has no business doing the job.
Noah Feldman is host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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