The fate of American presidential democracy may depend on the Senate passing a law whose prospects will vanish in 2023.
Democracy dodged a bullet in this midterm election. Around the country, candidates who rejected the legitimate results of the 2020 election lost races for Congress, for state secretary of state, and most importantly for governor. Kari Lake, an election denier who lost to Democratic candidate Katie Hobbs in the race to be Arizona’s next governor, was the most prominent face among those failed candidates. An election denying governor represents a cataclysmic threat to American democracy.
The process of counting the votes in the Electoral College is currently governed by the Electoral Count Act of 1887, a federal statute passed after the calamitous presidential election of 1876. Three states in the Reconstruction South sent multiple slates of electors, and the two chambers of Congress—divided between Democrats and Republicans—deadlocked on which of the competing slates to count. An ad hoc Electoral Commission ultimately handed the presidency to Republican Rutherford B. Hayes.
The 2020 election plot failed for reasons that no longer hold true. Enough elected officials in enough places resisted the pressure and temptation to use their power to corrupt the process. Whatever else you may think of Mitch McConnell, then the Senate majority leader, or of former Vice President Mike Pence, of Arizona Gov. Doug Ducey or Georgia Gov. Brian Kemp, they played critical roles in preventing a constitutional crisis.
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