IS THE GOP TRYING TO TAKE AWAY OUR BIRTHRIGHT?

 

                 …Rutherford B. Hayes should never have been our U.S. President

 

A partisan action could take away American’s birthright

 

With all the current rhetoric about the attacks on our democracy, it seems it’s refreshing that there are bipartisan talks about rewriting the Electoral Count Act (ECA) of 1887.  The ECA became a law because the elections in 4 states, Florida, South Carolina, Louisiana and Oregon, were being disputed.

The legislation at the time, to fix the problem, decided to develop a 15 person congressional commission to decide the elections results.

The end result shows why this is not the appropriate way to deal with any disputed electoral counts.

As it turned out, the reason we ended up with the Republican President, Rutherford B. Hayes, is because the 15 person commission voted 8 to 7 along party lines, which gave Hayes the one more electoral vote that he needed to win the presidency.  This was even though he lost the popular vote by a full three points.

This is just one reason why the ECA needs to be revised.

The ECA was intended to provide an orderly process in the event of another 1876-style dispute. But both parties in recent years have used the law to object to election outcomes in hotly contested presidential races. It has been manipulated to effectively make Congress a super court that can hear evidence and decide whether a slate of electors was invalidly selected by a state, with Congress being the sole determiner of what invalidity means.  That is not the way to decide what the people voted for.  The legislation branch is totally partisan and should not be acting as a Supreme Court.

 The fact that such challenges were easily voted down after both the 2004 and 2020 elections does not mean the process is secure.  In today’s partisan times, people can be easily whipped into a frenzy because they falsely believe their candidate had been unfairly deprived of victory. That’s exactly what the former president Trump did, and the Jan. 6 riot was the result.

That’s why it’s good news that at least 14 senators met via Zoom recently to discuss changing the law to remove any doubt about its purpose. The talks are still in their early stages, but sound ECA reform would eliminate the ability of members of Congress to raise objections to any state’s votes that were not already in question by the state itself. Once that ability is removed, Congress’s role would be purely ministerial except in cases where the state itself sent competing slates for Congress to decide, and that hasn’t happened in more than a century.

It is crucial to remove any temptation for democratic subversion, and that it is done on a bipartisan basis.  Democracy is sound only when all sides accept an outcome’s legitimacy, even if some deplore the outcome. That requires setting rules of the political road in every step of the process that all sides can recognize are fair and transparent.  Today, it’s becoming increasingly difficult for the two parties to compromise on many matters of this process, and that itself is very troubling.

But if they can reach agreement on this, it would remove any notes of discord.

ECA reform won’t end today’s bitter partisanship. Indeed, if the Act isn’t rewritten carefully, it could simply kick the can over to the states. Reform, for example, should prevent a defeated party from sending its own slate of electors for consideration, as was attempted by Trump's Republicans for the 2020 election.  This is especially true without any official certification.  I mean certification by a legitimate body of the state, such as the state governor, legislature or their courts. 

If that avenue isn’t shut off, then upset electors themselves can force Congress to consider damaging challenges. That’s why the discussions must take their time and come up with a solid, comprehensive approach.  An approach that allows Congress to decide on truly genuine disputes, while eliminating purely partisan challenges as much as possible.

Self-government has always been the heartbeat of American national identity.  We cannot allow legitimate partisan differences to confuse that basic fact, or to stop our ability to engage in that action.  Bipartisan ECA reform is as important for what it says about our ability to follow through to our national heritage, as it is for what it says for its concrete improvements.

If the both the Democrats and the Republicans can’t say that our democracy matters more than their individual victories, then that heritage is living on borrowed time. 

We cannot let partisans sell-out our birthright.

Copyright G. Ater 2022