Another Way To Elect A President: The Electoral Count Act (Part 6)
Oct 30, 2020
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In a captivating discussion, Professor Stephen Siegel, a Law Professor at DePaul University and expert on the Electoral Count Act, dives into the historical significance of this 1887 legislation. He addresses the complexities of election disputes, including contentious moments like Bush v. Gore. Siegel explains the process Congress follows when counting electoral votes, potential partisan challenges, and the importance of effective oversight. Listeners gain insights into navigating electoral controversies and the balance of power between state and federal authorities.
The Electoral Count Act underscores the importance of resolving electoral disputes at the state level to minimize congressional intervention.
Partisan divisions in Congress can significantly affect the integrity of electoral processes, complicating the acceptance of competing elector slates.
Deep dives
The Electoral Count Act and Its Historical Context
The Electoral Count Act, established in 1887, arose from the contentious presidential election of 1876, during which multiple states submitted conflicting electors' slates to Congress. This election highlighted the need for a systematic approach to handling electoral disputes to prevent confusion and potential conflict. The Act aims to keep election controversies at the state level, encouraging states to establish swift recount procedures to resolve electoral disputes before Congress has to intervene. As a result, the Act emphasizes state authority and aims to minimize Congress's role in electoral disputes, which was a significant concern following the divisive elections of the post-Civil War era.
Challenges of the Safe Harbor Provision
The Safe Harbor provision within the Electoral Count Act provides states with the opportunity to finalize their electoral vote results before a specified deadline, thereby receiving congressional recognition for their electors. However, past elections, such as Florida in 2000, revealed shortcomings in state compliance with the provision, raising questions about its effectiveness. Further complicating matters, Congress retains the authority to accept or reject electoral results based on their judgment of whether state laws and procedures have been duly followed. This dual layer of authority can lead to partisan disputes, particularly in a divided Congress, thereby undermining the goal of a clear, organized electoral count.
Role of Congress in Electoral Disputes
Congress serves as the final arbiter in determining which electors will be counted, particularly when competing slates are presented from state legislatures. Both houses of Congress must agree to sustain objections to the electoral slates, reflecting a consensus requirement that can stymie resolution efforts. This creates a dynamic where partisan divisions may hinder the confirmation of a slate, leading to a reliance on gubernatorial certifications that may not reflect the true will of the people. Such a scenario emerged during the discussion about the power shift to governors and the complexities of verifying slate legitimacy when legislative intent is questioned.
Implications of Partisanship on Electoral Integrity
The dominant role of partisanship in Congress raises significant concerns regarding the integrity of electoral processes and outcomes. The history of electoral disputes from 1876 to the present reveals how partisan interests can influence decision-making, resulting in potential deviations from constitutional mandates. Calls for greater professionalism in electoral oversight, such as establishing independent commissions, are countered by skepticism regarding the efficacy of such measures in a politically charged environment. Ultimately, the ongoing debate reflects a deep-seated tension between ensuring fair elections and navigating the pitfalls of partisan conflict in a system designed for democratic accountability.
In this episode, we speak with Professor Stephen Siegel, a Professor of Law at DePaul University, about the Electoral Count Act, which sets the rules for Congress when it counts electoral votes. We explain what happens if there is just one slate and how Congress might resolve a controversy if there are competing slates of electors from one state.
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