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Congress Is Finally Moving to Fortify American Democracy
A reform of the Electoral Count Act is on the horizon. It’s high time to pass it.
In the weeks after the 2020 presidential election, the American electoral system was stress-tested by Republicans searching for a way to overturn Joe Biden’s victory. At all levels, from President Donald Trump down to members of county canvassing boards, Republicans tried to exploit the ambiguities and peculiarities of federal and state election law in hopes that they could refuse Biden the presidency. These efforts culminated on January 6, when thousands of Americans ransacked the Capitol under the delusion that they could convince Vice President Mike Pence to unilaterally “decertify” Electoral College results.
Fortunately, all of these attempts failed. Over 60 cases challenging the election were thrown out by the courts, no state legislature submitted false Electoral College delegates, and Congress eventually certified Joe Biden’s victory. But even though the system successfully rebuffed each of the attacks coming from the GOP, the onslaught demonstrated that there are numerous imprecisions and weaknesses in American election law that need to be addressed.
The most notable point of weakness is the Electoral Count Act of 1887 (ECA), which governs the counting of Electoral College votes. The law is outdated and filled with vague language that opened the door to GOP mischief in 2020, and will almost certainly create problems in future presidential elections. For example, one provision grants state legislatures the power to appoint delegates to the Electoral College if the state has “failed to make a choice on the day prescribed by law”—but it never clarifies what constitutes such a failure. This ambiguity spawned the theory that state legislatures can arbitrarily submit an alternative slate of electors, regardless of the popular vote in that state, an idea that Trump advisers, including his Chief of Staff Mark Meadows, seized upon to try and pressure states to submit pro-Trump slates. The congressional procedures for counting and certifying results are likewise replete with troubling ambiguity.
Given these shortcomings, it’s a welcome development that, over the past two weeks, both the House and Senate have taken steps to update and clarify the Electoral Count Act. The House bill—The Presidential Election Reform Act—was introduced last Monday by Republican Liz Cheney and Democrat Zoe Lofgren, both members of the January 6 Committee. The legislation passed the full House last Wednesday, just two days after being introduced, and will now be sent to the Senate. The Senate bill has been a longer work in progress. Called the Electoral Count Reform and Presidential Transition Improvement Act of 2022, it was developed by a bipartisan group of Senators led by Republican Susan Collins and Democrat Joe Manchin. It now has 11 Republican co-sponsors and 11 Democratic co-sponsors, a level of bipartisan support that should prove strong enough to overcome a Senate filibuster. On Tuesday, the Senate Committee on Rules and Administration made key changes to the bill and voted to send it to the full Senate for consideration.
Broadly speaking, both the House and the Senate bills do a good job of shoring up American democracy.
On the state level, they each clarify that legislatures and governors do not have the power to overturn their state’s election results and select alternative slates of Electoral College delegates. Additionally, in its current form, the ECA allows states to extend election deadlines for an unspecified amount of time in case of a “failed” election (again, without defining what “failed” means); to fix this, the bills take the sensible step of narrowing what qualifies as a failed election to “catastrophic” events, language intended to encompass only extreme situations such as a natural disaster or terrorist attack. Finally, if a candidate believes a state official is breaking federal law, both pieces of legislation create an expedited process by which candidates can appeal to a 3-judge panel, which can force compliance with its decisions.
On the federal level, too, both bills are substantial improvements over the status quo. Perhaps most importantly, they both clarify that the vice president’s role is strictly ceremonial and that he or she doesn't have the power to single-handedly overturn election results. Additionally, under current law, it is enough for a single senator and representative to co-sign an objection for it to be entertained and debated—which is why so many objections were heard in 2020. Both bills would fix this problem by increasing the number of congressmembers needed to successfully raise an objection to Electoral College results.
There are a few important differences between the bills. The House bill would, for example, require support from one-third of the members of each chamber for a congressional objection to Electoral College results to be entertained, while the Senate bill would only require one-fifth. Similarly, when it comes to the congressional procedure for certification, the House bill lays out extensive rules for what kinds of objections can be raised, what motions are allowed, how long procedures can be delayed, and when Congress can vote to overrule a rogue Vice President. The Senate bill does not.
Despite these differences, the substance of both bills is pretty similar, especially after other consequential differences were ironed out in Tuesday’s Senate Committee markup. As a result, either bill would, if it became law, make a big contribution to fortifying American democracy.
Unfortunately, it remains unclear when—and even whether—that will happen. At the end of the week, Congress will go on recess until after the November midterms, meaning that the last chance for the bills to pass will likely be during the lame duck session before the new Congress is sworn in next January.
To their shame, Democrats are largely to blame for this time crunch. Until quite recently, the party was narrowly focused on passing their flagship voting rights legislation. When Senate Republicans indicated an interest in reforming the ECA earlier this year, Democrats refused to take up the issue while their other voting rights bills were still under consideration. In January, during a speech marking the anniversary of the January 6 attack on the Capitol, Democratic Senate Majority Leader Chuck Schumer said that ECA reform was an “insufficient,” “cynical,” and “offensive,” idea intended “to divert attention from the real issue” of passing voting rights legislation. Other Democrats expressed similar feelings about ECA reform, calling it a “distraction” and saying that they “don’t think it’s the core problem.”
But those who care about shoring up American democracy should recognize the importance of ensuring that election results are counted accurately and impartially. Republicans have nominated gubernatorial candidates in the swing states of Pennsylvania and Arizona who believe the 2020 election was fraudulent and would likely try to overturn future presidential elections that don’t go their way. It’s not difficult to imagine Trump losing a closely-contested election in 2024 and pressuring his acolytes to thwart the counting and certification process. Having learned from their failures in 2020, Republicans would likely be more strategic and aggressive in their efforts next time.
Both proposed ECA reform bills would go a long way to preventing our democracy from being pushed to the brink. Partisan opposition from both the right and the left has delayed this necessary legislation long enough. With the clock ticking, and Republicans likely to take control of the House in January, pro-democracy legislators should work across chambers and party lines to pass much-needed reform before it’s too late.
Seth Moskowitz is an associate editor at Persuasion.
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