Opinion | Trump proved these 19th-century election laws are ticking time bombs

Jan’s house. The six committee hearings raised two overarching questions. Case 1: Will the Justice Department prosecute and prosecute former President Donald Trump for leading a conspiracy to steal the 2020 presidential election? Second: Will Congress enact essential reforms to protect our democracy from a future presidential coup or insurgent attack on the U.S. Capitol?

The first question can ultimately only be answered by Attorney General Merrick Garland. Congress is currently considering the latter.

A bipartisan group of senators led by Sens. Susan Collins, R-Maine, and Joe Manchin, DW.Va., proposed two measures on Wednesday that would dramatically reform the flawed 19th-century statutes that still govern US presidential elections. Ky. Changes had to be made to the Presidential Election Day Act of 1845 and the Voter Counts Act of 1887, of which the 1845 Act was amalgamated.

The proposed bills open the door for the Senate to address serious issues in these laws — issues alarmingly dramatized by Trump’s presidential coup attempt. It is becoming increasingly clear that loopholes in the 1845 Act and issues in the Voter Count Act are at the heart of Trump’s attempt to steal the 2020 election.

Collins-Manchin’s proposal needs to be carefully considered to ensure it will prevent future presidential coup attempts. It would also need 10 Republican senators to oppose an objection and no objection from Senate Republican Leader Mitch McConnell to get through the Senate.

Also, January. The six vice chairmen, Representative Lynn Cheney, R-Wy., and senior member Rep. Zoe Lofgren, D-Calif. issued a statement late Wednesday that the council would propose its own bipartisan measure to fix the Voter Count Act.

The National Assembly has the power, under Article 2, Section 1, Clause 4 of the Constitution to determine when presidential electors are selected. The 1845 Act establishes an official four-year Presidential Election Date on which voters choose electors. It also provides that if a state “does not make a choice” on Election Day, that state’s presidential electors may be chosen “in such a way that the legislature of that State may direct .” There is no definition of what “doesn’t make a choice”.

This means that the state legislature could simply decide that voters “didn’t make a choice” based on widespread voter fraud – or any other reason that the legislature option. It can then substitute its own presidential voter selection for those selected on Election Day.

Sounds far-fetched?

That is – until Trump and coup strategist John Eastman tried to use that loophole to overturn Joe Biden’s victory.

We heard it at Jan’s House. The June 23 meeting of the 6 committee on how plans and plots play out. Former acting Attorney General Jeffrey Rosen and former acting Deputy Attorney General Richard Donoghue tested a letter that acting Jeffrey Clark, then head of the Justice Department’s Civil Division, had them sign.

The letter claims – falsely – that the Justice Department has identified significant concerns about irregular voting in many states, including Georgia. After the letter was signed, Clark, working on Trump’s behalf, planned to send it to the governor of Georgia, the speaker of the House and the president of the Senate supporting it – all Republicans.

To address this fabrication, the letter proposes that a special session of the Georgia Legislature be held. It will then “assess irregularities” and “take whatever action is necessary” to ensure that the correct group of electors is sent to Congress – i.e. the Trump team, despite Biden’s win. be state.

Most critical, the letter cites a loophole in the 1845 Act as the basis for the Georgia Legislature to override voters and choose its own presidential electors. The letter said the action “clearly recognizes the power with which the State Legislatures must appoint electors” when voters “fail to make a choice” on Election Day.

Clark’s proposed effort also involves 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.

However, the blueprint outlined a path for future coup plotters to follow. They won’t even need the Department of Justice. State legislatures can do it on their own – and many of the key battleground states are now controlled by Republicans.

The “no-choice” loophole of the 1845 Act was a positive ticking time bomb. Reform is needed to get rid of it and take away the ability of state legislatures to override voter choice.

A second major problem in 19th-century legislation is illustrated by Trump’s January 2021 phone call with Georgia Secretary of State Brad Raffensperger. Trump spent an hour pressuring state officials to change Georgia’s presidential vote. “All I want to do is this,” Trump said on the call. “I just want to find 11,780 votes, one more than our vote because we won the state.”

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

Trump’s call appears to violate both federal and Georgia state law. But this case shows how a rogue secretary of state or other empowered public official can certify the president’s false electors or refuse to certify any.

A presidential candidate who is adversely affected by such an action must be able to effectively challenge this in court. The exact reform provisions in the Vote Counts Act must be clearly written to avoid any ambiguity that could create ambiguity – and thus create new opportunities to overturn the election. nominate the president.

The reforms must address the specific cause of action against false or non-certified certification. They should also provide the right to expedited federal court review.