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Efforts to Prevent Trump’s Presidential Nomination Collide With Congressional Realities. New Updates!

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The Jan. 6 hearings on Capitol Hill are looking into ways to make future presidential elections more Trump-proof by making it more difficult for lawmakers to certify the results. There’s just one problem: They might be ignored by a future Congress.

According to the Constitution, lawmakers must certify the Electoral College vote on January 6 in order to complete presidential elections, which made the date a target for former President Donald Trump and his most ardent supporters. The Electoral Count Act, enacted in the wake of another contentious presidential election and now in effect for more than a century, serves as the guide for this work. However, even at that time, there were serious doubts about the constitutionality of certain parts of the law.

And Congress has avoided the subject for 134 years.

The Electoral Count Act, even though it may be little more than a glorified suggestion as a constitutional matter, has instead been agreed to be followed every four years. Instead of debating the issue, Congress has passed resolutions that make it clear that they are bound by the law, even though they may not be legally binding.

Today’s Congress is in a precarious position because of the unanswered questions. Trump or any other losing candidate should not be able to try to attack the transfer of power during certification, Democrats and the two House Republicans on the Jan. 6 select committee believe. There is a strong connection between the select committee’s mandate and reforms to Section 3 of the Act.

Prior to making any changes to the law, the panel must first address a long-standing conundrum for constitutional scholars: Can the Electoral Count Act’s most important provisions be enforced, or will a future Congress in cahoots with a defeated presidential candidate simply disregard them?.?

It will be up to the “honor system,” according to D.-Md. Rep. Jamie Raskin (D), a member of the Jan. 6 panel and a constitutional law professor.

Efforts to Prevent Trump's Presidential Nomination Collide With Congressional Realities.

According to Raskin, future Congresses must decide to follow the Constitution and rule of law.

Even Rep. Liz Cheney (R-Wyo. ), the vice-chair of the Jan. 6 select committee and an outspoken critic of Trump since the Jan. 6 attack, acknowledged in a pre-insurrection memo that there was “substantial debate” about the constitutionality of the Electoral Count Act.

A law dictating how the next Congress certifies presidential elections is a contentious issue among experts. Most of the time, the House and Senate are empowered by the constitution to make their own rules, which they can amend at any time they see fit. It would be unconstitutional to pass legislation to prevent this. But many constitutional scholars argue that the Electoral College certification is so important that it overrides that congressional prerogative.

Nonetheless, their perspective is of no practical use. What matters most is how future presidents and members of Congress will act if they are elected in 2024. Leaders in Congress aren’t obligated to follow the academic community’s consensus on any given issue, and they frequently don’t.

Legal theories were crafted by some of Trump’s closest aides, including a few lawmakers, for months after his defeat in 2020 in order to convince then-Vice President Mike Pence to ignore the Electoral Count Act in an effort to keep Vice President Joe Biden from becoming president. To put it another way, these “fringe” ideas could be used as a guide if a future Congress decides that the Electoral Count Act can no longer govern the certification process on January 6.

It appears that for the time being, the Jan. 6 panel is taking a wait-and-see approach to the issue, deciding that doing something is better than doing nothing. According to aides, the mere act of passing reform legislation could act as a deterrent.

It’s still up in the air whether the [Electoral Count Act] can be changed by future Congresses, according to an anonymous House aide familiar with reform efforts. Putting changes into law gives them legal status, which makes it difficult to back out of, which is probably why Congress has never done so.

In 1887, just a decade after a disputed presidential election nearly split the United States apart, Congress was engulfed in an intense debate about the legitimacy of the presidency.

Electoral Count Act professor Stephen Siegel wrote in a widely cited 2004 analysis that “[t]o these congressmen, an unenforceable law was better than no agreement at all.” “The ability to bind Congress’ conscience and create a moral obligation to abide by the terms” of an unenforceable law was important to those lawmakers in the nineteenth century, according to Siegel.

Of course, it’s anyone’s guess whether the modern Congress will continue to uphold this moral obligation. Because of competing constitutional principles, such as Congress’ power to “to make all Laws which shall be necessary and proper,” many experts believe that the Electoral Count Act can bind Congress.

In spite of the fact that he acknowledged “differences of opinion,” constitutional scholar Ned Foley of Ohio State University insisted that the Electoral Count Act would have to be changed in the future Congress. A set of human beings who want to do something solely for political reasons — and thus ignore rules — cannot be perfectly constrained by rules, he cautioned.

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Despite the pleas of academics, it is unlikely that any reform of the Electoral Count Act will be passed by Congress before the 2024 election. Legislation that would have created an independent commission on Jan. 6 was filibustered by the Senate Republican Party.

In the event of a future Electoral Count Act dispute, the courts may decide to stay out of it. With Bush v. Gore still fresh in the minds of many, judges may be reluctant to intervene in the legislative process in the same way they did before the case.

With no new legislation requiring the House and Senate to meet in person and count ballots delivered by states, the Twelfth Amendment was all that existed for ensuring that Electoral College votes were counted. The amendment sends the election to the House if no candidate receives a majority of the vote.

With the Electoral Count Act, Congress mandated a joint session of Congress on the 6th of January following each presidential election to oversee the states’ certification of election results. While allowing lawmakers to challenge the legitimacy of certain electors, it requires the vice president to preside and read the results from each state.

Taking advantage of legal ambiguities, Trump compelled Pence to reject the votes of dozens of Biden supporters. He also tasked allies in Congress with filing as many challenges as they could think of in order to delay the official certification that Biden had won. During the uprising, some Trump supporters chanted “Hang Mike Pence” in protest of Pence’s refusal to go along with the plan.

It’s been one year since the Jan. 6 select panel’s mission was to reform the Electoral Count Act; Rep. Zoe Lofgren (D-Calif.) is leading the charge on the issue. Legislators in the House of Representatives Elections Committee led by Rep. Lofgren and her colleagues are attempting to fix specific flaws in the law that President Trump and his allies exploited.

Yeshiva University Cardozo Law School constitutional law professor Deborah Pearlstein recommended to lawmakers some “low-hanging fruit” changes, including raising the bar for substantive challenges to electoral votes and establishing a remedy if the House and Senate disagree on how to resolve a disputed set of electors.

Constitutional scholar Foley expressed concern about “the Big Lie 2.0,” noting that the law was barely able to stand up to Trump’s baseless fraud claims. To avoid a situation where the issue isn’t fabricated, the system needs to be prepared.

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