And Congress has spent 134 years avoiding the subject.
Instead, it has agreed to abide by the Electoral Count Act every four years, even if, as a constitutional matter, the statute may be little more than a glorified suggestion. In fact, Congress has diligently sidestepped the debate by passing resolutions tying itself to the rules of the law — a nod to the notion that they might not be mandatory.
The unanswered questions leave today’s Congress in a perilous position. Democrats, along with the two House GOP members of the Jan. 6 select committee, want to prevent a future effort by Trump or any other losing candidate to attack the transfer of power during certification. That makes Electoral Count Act reform a central part of the select committee’s mandate.
Yet before the panel can propose a change to the law, it must at least try to settle a question that’s vexed generations of constitutional scholars: Can the Electoral Count Act’s key provisions be enforced, or can a rogue future Congress — in league with a losing presidential candidate — simply ignore it?
Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 panel and a constitutional law professor, said any reforms the panel passes would largely depend on the “honor system.”
Future Congresses “have to decide to abide by the Constitution and the rule of law,” Raskin said.
Across the aisle, Jan. 6 select committee vice chair Rep. Liz Cheney (R-Wyo.) — who has lambasted Trump since the Jan. 6 attack — acknowledged “substantial debate” over the Electoral Count Act’s constitutionality in a pre-insurrection memo to colleagues urging them to certify Joe Biden’s victory.
Experts are split on whether any Congress can pass a law that would dictate how its successors certify presidential elections. Typically, the House and Senate have the constitutional power to set their own rules, which can be changed at will. Attempting to legislate against this would be unconstitutional. But the Electoral College certification is so significant that many constitutional scholars say it overrides that congressional prerogative.
Still, their view is, practically speaking, irrelevant. What matters most is how leaders of the Congress elected in 2024 and future presidential years behave. They’re not beholden to adopt the prevailing view of the scholarly community, and congressional leaders often don’t.
Some of Trump’s closest allies, including a few lawmakers, spent months after his 2020 defeat crafting legal theories that the Electoral Count Act is unconstitutional, urging then-Vice President Mike Pence to ignore it in a bid to keep Biden from the presidency. If a future Congress decides the Electoral Count Act can’t govern the Jan. 6 certification, these fringe theories would serve as a blueprint — and there’s little recourse to overrule them.
For now, the Jan. 6 panel appears to be forging ahead without a firm answer, deciding that doing something to prevent any future subversion of democracy is better than…