Before 2022 Ends, Congress Should Do Its Job — and Update the Electoral Count Act
[Note: An audio version of this column appeared on WJCT First Coast with Melissa Ross on Thursday, May 26, 2022]
“I’m the guy who does his job. You must be the other guy.”
If you have seen Martin Scorsese’s 2006 Academy Award-winning film The Departed, you may recognize that dialogue. A Massachusetts State Police technician undermines a crucial surveillance operation, and then compounds his mistake by asking Staff Sergeant Sean Dignam (played by Mark Wahlberg) to identify himself. Dignam’s response — about being the guy who does his job as opposed to the other guy — is one of the most memorable lines from the movie.
As someone who closely observes government, I’ve thought about that dialogue often in recent years. While there are public officials who do their jobs, we have also seen examples of others auditioning for the part of “the other guy.”
One such instance occurred on January 6, 2021. In November 2020, a clear majority of more than 81 million voters chose Joe Biden and Kamala Harris to be the next President and Vice President. The following month, the U.S. Electoral College awarded Biden and Harris the 306 electoral votes earned from the states they won. Yet 8 U.S. Senators and 139 members of the U.S. House of Representatives refused to certify the election results despite no legitimate basis for objection.
Of course, we know what else happened on January 6, 2021 — a violent insurrection which halted the certification process for hours, damaged the United States Capitol, and resulted in the deaths of or injuries to U.S. Capitol Police officers.
If you think another January 6 can’t happen, think again.
One of the people who participated in the January 6 protests recently became the Republican nominee for Governor of Pennsylvania: State Senator Doug Mastriano. In 2020, Mastriano falsely claimed Donald Trump won the Keystone State. He urged the Legislature to select electors who would choose Trump even though voters chose Biden. Mastriano has promised, if elected, to require voters to re-register, limit voting by mail, and decertify county election machines.
In 2024, Pennsylvania will cast 19 electoral votes.
Earlier this week, Georgians went to the polls for state primary elections. While two officials who resisted pressure to change the 2020 outcome — Governor Brian Kemp and Secretary of State Brad Raffensperger — won their elections decisively, another contest had a different result. State Senator Burt Jones finished first in his primary election for Lieutenant Governor. In 2020, Jones supported Trump’s inaccurate claims of a stolen election. He attempted to persuade the Georgia Legislature to overturn Joe Biden’s win in the state and tried to delay congressional certification.
In 2024, Georgia will cast 16 electoral votes.
But there is something Congress can do to safeguard the will of voters in future elections: Update the Electoral Count Act, which governs how Congress tabulates electoral votes. Enacted when Grover Cleveland was President, the Electoral Count Act is now 135 years old. Because parts of the law are imprecise, it was the basis for incorrect claims that a Vice President could unilaterally overturn the election result and for congressional opposition to certifying the vote count.
The potentially promising news is that a bipartisan coalition of U.S. Senators is working to modernize the Electoral Count Act. House leaders have also been engaged on the issue. Proposed changes could clarify the role of the Vice President; make it harder for Senators and House members to challenge valid state electoral vote counts; and implement other reforms designed to prevent a repeat of what happened in Congress on January 6 — or something even worse.
Every Member of Congress takes the same oath of office: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
Time is of the essence. If members of Congress want to fulfill that oath of office, they should prioritize clarifying the Electoral Count Act before the end of 2022. Such an action would give supportive elected officials of both parties the right to say they were the ones who did their jobs to support and defend the Constitution — unlike the other guys.
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Chris Hand is a government law attorney who served as a U.S. Senate staff member from 1996–2000 and Chief of Staff at the City of Jacksonville from 2011–2015. He co-authored America, the Owner’s Manual: You Can Fight City Hall — and Win and authored the 50th anniversary edition of A Quiet Revolution: The Consolidation of Jacksonville-Duval County and the Dynamics of Urban Political Reform.
