Griffiths is the national editor of Independent Voter News, where a version of this story first appeared.
More than a year after the highly contested 2020 election, the controversy over the integrity of the process and the response to the election results is still on full display in our nation’s capital. A proposed change to a law controlling the Electoral College seeks to ease any concerns over the presidential elections process.
Even though the Electoral College is enshrined in the Constitution, Congress did not have rules to deal with the chaos of contested election results until passing the Electoral Count Act of 1887. The law was a response to the 1876 presidential election, in which three states – Florida, South Carolina and Louisiana – upended the entire process by sending in multiple slates of electors to Congress.
Democrat Samuel Tilden had won the popular vote over Republican Rutherford B. Hayes. However, because of the contested results, Congress created an ad hoc commission to decide the presidency. In the end, Hayes would be declared the winner.
Many Democrats, furious over the decision, refused to accept the results until the Compromise of 1877, which called for an end to Reconstruction and the withdrawal of federal troops from former Confederate states. It took Congress a decade, however, to pass a law that lawmakers hoped would ensure history would not repeat itself.
Thus, we got the Electoral Count Act.
Each state is granted a certain number of electors, based on population. The winner of each state's popular vote is awarded electors, who cast ballots in the Electoral College in accordance with the state's results. Whoever receive a majority of the Electoral College votes wins the presidency.
The law governs the entire electoral counting process. It sets the structure of the process, timelines and procedures on how to handle disputes. It also states unambiguously that the sole intent of Congress should be to count every state’s electoral votes. For instance, the law dictates that electors meet on the first Monday after the second Wednesday in December. It also defines "safe harbor" status for states that submit their electoral results six days before the Electoral College convenes, which means Congress has to treat the results as conclusive even if a state legislature attempts to send in a competing set of results.
However, many legal experts believe the law is not without flaws, particularly when applied to modern elections. The National Task Force on Election Crises called it "extraordinarily complex" and "far from the model of statutory drafting" in its analysis of the law. The task force’s analysis mostly highlights what the law does. However, it also believes the ECA must be updated.
The law, for example, allows members of Congress to easily object to the counting of electoral votes on a state-by-state basis, which slows down the process. This tactic has been used by members of both parties, including Democrats after the election of Donald Trump and Republicans after the election of Joe Biden.
It also doesn’t define the vice president’s role in unambiguous terms, something that came up after the 2020 election when Trump suggested Vice President Mike Pence could overturn the results – something federal law does not allow. Pence even said that such action was not within his power as established in the Constitution..
Among the task force;s recommendations:
- The ECA must better clarify timelines for states to choose electors and clearly define circumstances in which elections may be decided after Election Day.
- The ECA must bolster the protections granted to states to adjudicate their own election disputes.
- The ECA must make the mechanism for dispute resolution less convoluted, as the current law allows for extensive procedures but no clear path for final resolution.
- The ECA must clearly state that partisan and political preference is not a legitimate reason to object to the counting of electoral votes, and not only require more than one member from each chamber to raise an objection, but narrowly define the grounds upon which members can object.
- The ECA must better clarify the vice president’s role in the process, which is “limited and ministerial.”
Members of both parties support updating the ECA to not only strengthen the process, but to bolster confidence in its integrity. Some even believe it would help prevent another Jan, 6 incident. An update to the ECA is expected to emerge in the Senate soon.
It is important to note that any bill to change the ECA would not impact any structural and administrative issues related to the popular vote.
There is a last ditch effort by Democrats in the Senate to advance two reform bills that would take a more expansive approach to election law in the Untied States: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. The first includes provisions to expand voting access and standardize voting laws in federal elections across the country, along with other provisions that make Election Day a national holiday, bar partisan gerrymandering for congressional districts, require voter-verifiable paper ballots and post-election audits, make interfering in voter registration a federal crime, make changes to campaign finance laws and more.
The John Lewis bill would update the Voting Rights Act of 1965 to determine what states must submit to federal review of election changes before they can be instituted (a process struck down by the Supreme Court in Shelby County v. Holder).
United Republican objection to both bills has prevented them from even making it to the Senate floor, and in all likelihood these bills will never advance to the president’s desk without changing filibuster rules.
Children watch a July Fourth Parade along the Walkway of Heroes and Independence Avenue on July 04, 2026 in Tappan, New York.
The Great American Grumpfest
Our nation’s 250th birthday party didn’t feel especially patriotic and wasn’t as much fun as the 200th anniversary was.
President Trump, who did his best to co-opt our holiday for his personal aggrandizement, was a major reason. The party he threw in Washington, D.C., was crankier than uplifting, and less about celebrating our shared past and a promising future than about reminding us how far we have strayed from our founders’ plan to create a republic that future Americans would keep in good working order.
Credit Trump this much. He has a singular gift for picking at scabs that other politicians would rather ignore and pushing us into reckonings we don’t need.
The thing is, Americans have seen all this before. Sometimes the makeover we were encouraged to undertake was more conservative, sometimes more liberal. Whatever direction we were pushing, however, the reckoning we had in mind this time had to be more forthright and the conclusion more definitive than it was the last time.
Our current discontents, the ones behind the reckoning President Trump has been trying to inspire, are not trivial. Included among them are immigration, birthright citizenship, exploding healthcare costs, election rigging, a gag-inducing national debt, how we educate our children, too many genders, racial differences we can’t move past, a lopsided economy that favors more well-off Americans, and historic levels of political corruption and graft. Add to these the several foreign adventures he has pushed us into or is anxious to undertake, and you have the makings of a national headache the likes of which we haven’t had in half a century.
All the elbow-throwing and overheated rhetoric we’re using today have begun to look almost normal in all the ways that bickering neighbors and feuding family members appear normal. But they have also made us look mean-spirited and have portrayed our differences as irreconcilable. To ourselves, of course, but also to many people outside the United States who might be forgiven for turning their heads and not looking at the national car wreck we Americans show no interest in avoiding.
The good news, as I suggested above, is that Americans have had a great deal of practice dealing with challenges and national car wrecks like these.
This essay begins to lay out the reasons why.
By way of illustration, we have our seemingly insatiable demand for more bad news about race in America.
Sixty years after being released from the legal constrictions that bedeviled both white and black Americans, many white people have come to believe the color that used to make them unassailable is now a sign of a moral inferiority born of a racial animus they can never wash off. Many black people, on the other hand, are insisting that America is as hopelessly stacked against them as the formerly unassailable white people’s ancestors used to tell their black ones.
The result is that many people today are buying into racist nightmares and mumbo jumbo that their black and white ancestors worked hard and effectively to put in each other’s heads.
This might be dismissed as crazy behavior if it weren’t so important to rituals Americans have long used to express their deepest fears about each other while figuring out what move they can make that won’t end with their world crashing down on everybody’s head.
Unfortunately, the kind of cultural sleight of hand we have used to ramp up our racial differences has been appropriated by people who have many other cultural fears and unresolved differences with each other. Their clumsy but culturally prescribed missteps are making all these other issues look as irremediable as our racial problems.
A good place to start an answer to how we back away from ledges is Alexis de Tocqueville’s writing on early-19th-century American democracy. He had an optimistic take on Americans’ unscripted displays of public bravado, recrimination, and payback.
For him, these were occasions when people tried to mitigate the effects of the unfair hand they were dealing someone else or had themselves been dealt by behaving in ways quite at odds with how they would otherwise be expected to act. These inversions of what Tocqueville called “the natural order of conscience” presented themselves as a loud but culturally muted challenge to the hypocrisies that people had built into the world they’d made together.
One of his favorite illustrations of early-American hypocrisy involved slave masters sleeping with their less-than-worthy slaves. To the best of my knowledge, he didn’t pick up on all the ways that slaves messed with their owners. Their well-chronicled and quiet resistance showed that even severely ill-treated people can exercise more control over their lives than outsiders appreciate.
Be that as it may, such inversions of a people’s “natural order of conscience” make a good public show of them wrestling with demons they can’t or may not want to shake off, but in any case, are nowhere close to figuring out how to cast out.
Implicit in these disruptions was the discomforting idea that people might flip the entire script and turn the world on its head in more permanent ways. That kind of flipping worked out better for us in our revolution against England than in our Civil War. These events taught us the value of stepping back from historically unprecedented ledges.
Americans of late have been giving loud expression to a long list of things they don’t like about each other and the last makeover they started but didn’t finish a half-century ago. The outcome of our fights today will be as revealing as they are embarrassing to everyone who imagined they could recast our country in a way that privileged their favorite kind of Americans.
Their disappointment with the accommodations they strike will be palpable, but the middling results they achieve with all their pushing and shoving won’t be anything they can’t live with.
Anthropologists who have written about such moments in other cultures less “advanced” than our own show that people find ways to work around their seemingly irreconcilable differences without ever fully resolving them. Indeed, the patches and repairs people make have the unheralded effect of reinforcing rather than undermining the legitimacy of the practices and values they thought were fundamentally flawed.
For example…
White guilt and black pessimism do more good than putting cash into the pockets of professional shamers and handwringers. They give the rest of us who don’t feel guilty or powerless more time to make the world less racially unequal. Good news.
Regarding illegal immigration, the entrance requirements for future immigrants will remain stringent. Americans will applaud the continued detention and deportation of the few illegal immigrants who commit serious crimes. Good news.
All the people who came to the United States without being legally vetted and were locked up for a time will be released in numbers small enough to avoid serious media attention. Along with the several million other good people who snuck in but avoided capture, the former detainees will go to school, find gainful employment, pay their taxes, and stay out of trouble. Many will eventually become citizens. Good news.
Investigations into election tampering and Donald Trump’s 2020 presidential loss will come to an unceremonious conclusion the day after his second term ends. Many Americans will grumble about this, but there will also be some quiet partying, too. Good and bad news.
Congressional hearings into all the grifting accomplished by people tied to the Trump administration will end without anyone having to pay a dime back to the American taxpayers. Bad news, we’ll learn to live with.
New laws and regulations will be created in the hope that the kind of corruption practiced by President Trump will not be repeated for another 250 years. Good news, I hope we’ll live long enough to enjoy.
Show trials for people who allegedly vandalized the Lincoln Memorial Reflecting Pool, if they happen, will get big television viewer ratings. Good news.
Trials for pardoned Capitol insurrectionists who committed serious crimes after their release should get more attention, but won’t. Bad news.
We will continue to hear nothing from most of the people who were pardoned for crimes they committed in the insurrection at the Capitol on January 6, 2021. They will keep their mouths shut and their heads down for the rest of their life. Good news.
The gold-gilded ornaments that Donald Trump had plastered all over the White House will be shipped to Mar-a-Lago, where the former president will sell them on eBay. Fun news.
American taxpayers end up paying for most of the new East Wing, the removal of the miniature gladiatorial arena that was built behind the White House, and the restoration of the White House rose garden. Bad news.
The Triumphal Arch was never built. Good news.
Trad wives and gay couples raise perfectly lovely children. Good but unsurprising news.
Trans men and women learn that most Americans can’t figure out who they used to be. No one gives a second thought to their use of “family bathrooms” or “unisex bathrooms” in public settings, businesses, and schools. Communities will sponsor athletic teams that have trans boys and girls just to show they can. Good news.
Budget deficits will be kicked down the road for someone else’s children to pay down. Bad news.
Federal agencies that had their budgets and employee ranks slashed during President Trump’s second term are getting some of the money and lost positions back. Good news.
Elite universities will buy their way out of DEI purgatory by competing for conservative scholars whose inflated salaries dwarf those of their liberal colleagues, who will think about suing their institutions for reverse discrimination but won’t be able to figure out who would pay for it or care. More fun news.
Okay. I’ve probably missed some ways that Americans will step back from the ledges they have been making noises about leaping off. But to the extent that my predictions pan out, the best and most important moral of the stories about us stepping away is this: everything we lost and took back, or had returned to us, will have happened without our government collapsing, civic traditions crumbling, or our people beating each other up.
The reason why is that the differences Americans have with each other really weren’t as irreconcilable as we made them out to be. The empty-sounding bromide that Americans have more that unites us than divides us turns out to be true, not just metaphorically but in fact.
Now that is really something to celebrate.
Daniel J. Monti (danieljmonti.com) is Professor of Sociology at Saint Louis University and the author of American Democracy and Disconsent: Liberalism and Illiberalism in Ferguson, Charlottesville, Black Lives Matter, and the Capitol Insurrection.