No More January Sixths: A Constitutional Proposal to Take Politics Out of Presidential Election Mechanics
Paul Boudreaux * | 24.5 | Article | Citation: Paul Boudreaux, No More January Sixths: A Constitutional Proposal to Take Politics Out of Presidential Election Mechanics, 24 U. Pa. J. Const. L. 1029 (2022).
The shocking events of January 6, 2021, in Washington should spark legal reform. But the focus of this essay is not the storming of the Capitol. Rather, this essay focuses on the ill-considered legal mechanics for the presidential Electoral vote, through which members of Congress “objected” to the counting of votes for Joe Biden, who won the 2020 election, in the midst of months of haphazard litigation and vague claims of a “steal.” The system that American law uses to count presidential votes was not anticipated by the Framers of the Constitution and surely is not a sensible method for concluding the most important election in the world.
This proposal for constitutional reform is guided by four simple principles, explained below in Part II: (1) ministerial functions of government should not be carried out by elected officials; (2) a constitutional amendment should do as little as necessary; (3) amendment should be done in a politically neutral manner, applying the Golden Rule; and (4) a revised system should provide for legal repose.
In part III, this essay identifies three legal mischiefs of the current system and proposes three straightforward constitutional amendments. First, the Constitution should avoid potential mischief by clarifying that only the citizens, not the state legislatures, hold the power to choose presidential Electors. Second, the Constitution should require expeditious state resolution of popular voting disputes; after six weeks, challenges would be barred. Third and finally, law should stop the mischief of Congress’s meddling with the Electoral results, which was authorized by the constitutionally questionable Electoral Count Act of 1887; the Constitution should remove Congress entirely from presidential Electoral procedures. The aim is to create a more efficient, democratic, and fairer system, in which the congressional events of January 6th will never recur.
* Professor, Stetson University College of Law, Gulfport and Tampa, Fla. The author thanks his colleagues, Louis Virelli, James Fox, and Christine Cerniglia, for their comments on an earlier draft.