The Mess Congress Could Make
If it’s close, don’t forget Congress.
In the current anxiety over the possibility of a disputed election, attention has focused most on the battle that could rage in America’s courts to count the votes. But Al Gore’s acceptance of the Supreme Court’s judgment in 2000 has obscured a more likely venue for that fight: Congress.
The reason is a flawed statute for counting electoral votes—the Electoral Count Act of 1887 (ECA)—combined with a political reality that was unimaginable just five years ago.
We have entered a moment of irrational partisanship. If the election is close, yet marred with violence or credible claims—on either side—of fraud, that partisanship will trigger a self-righteous and irrational response, on both sides, and likely together. Each will have its reasons for the actions it takes. Each will believe itself justified by the wrongs charged to the other.
[Read: What’s the answer to political polarization in the U.S.?]
On the right, the election will be a story of fake ballots and illegal voting. On the left, the story will focus on votes suppressed, or mail-in ballots ignored. Those charges, if true, would be outrageous in any election. But long before any sober look could determine whether they are true, they will trigger action by the American people, and most importantly, by a political elite. Both sides will have a ready account for why their own actions are justified. Those accounts, supported by endless reporting and commentary by a media financially motivated to tribalize us, will steel each side to the extremes I describe below. Each will believe that it is saving the republic. That belief is dangerous at any time. Unmoderated by a balancing and disinterested force—what we once imagined broadcast journalism could be—it will inspire the worst in all of us.
I am not saying that both sides are equally untethered to reality. President Donald Trump’s preemptive discrediting of this election is baseless and inexcusable. Nothing the Democrats have done comes anywhere close to that wrong. No fair review of the president’s words and behavior could judge him as acting in good faith. He
