Fixing the Electoral Count Act Is Suddenly the Most Popular Policy Idea in Washington

• Jan 26, 2022

The pitfalls of being the nominal majority party in an evenly divided Senate were reinforced last week, when Democrats failed to enact two voting rights measures without Republican support and then were unable to muster the votes to change the rules to allow the legislation to pass with a simple majority. Although all 50 Democrats supported the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, only 48 voted to weaken the filibuster, meaning that the bills were still subject to the 60-vote threshold to advance and therefore unable to move forward without Republican support.

Democrats insist that they are not giving up on their voting rights measures, but the path forward is exceedingly narrow as long as the filibuster is in place. Some believe that Democrats should therefore focus on what’s achievable, a compromise that may be able to garner support from a sufficient number of Republicans. Here’s something at the top of that list: reforming the Electoral Count Act, the archaic and confusing law that outlines the process for certifying Electoral College results in Congress.

Election law experts have been jumping up and down warning about the potential for the Electoral Count Act to be exploited by bad-faith partisan actors for years. Members of Congress have only recently wised up to the threat posed by the measure, mainly after the 2020 election culminated in President Donald Trump’s persistent efforts to overturn the results, which you might remember came a little too close to succeeding to make anyone comfortable.

Members of Congress are already beginning to discuss methods for reforming the measure. Senator Angus King, along with Senators Amy Klobuchar and Dick Durbin, is expected soon to introduce the Electoral Count Modernization Act, which is aimed at clarifying and reforming the role of states, members of Congress, and the vice president.

Separately, an expanding bipartisan group of senators—including Senators Joe Manchin and Kyrsten Sinema, the two Democrats who objected to weakening the filibuster—has held regular meetings on the issue in recent weeks, including a confab via Zoom on Monday. Republican Senator Susan Collins, who convened the bipartisan meetings, told reporters last week that senators were also looking at implementing protections for election workers. Manchin said that he had spoken to President Joe Biden about the issue and that the president had been supportive.

Crucially, Senate Minority Leader Mitch McConnell has signaled openness to reforming the Electoral Count Act, indicating that there may be sufficient Republican support. McConnell gave his blessing to Republicans negotiating on the issue last week, telling reporters that he is “happy to take a look at what they come up with.”

“I just encourage the discussion because I think it clearly is flawed. It’s directly related to what happened on January 6, and we ought to be able to figure [out] a bipartisan way to fix it,” McConnell said, referring to the deadly insurrection last year in which Trump supporters sought to halt the certification of the Electoral College vote in the hopes of overturning the result. House Minority Leader Kevin McCarthy, who objected to the Electoral College results on January 6, 2021, also told reporters last week that there is “nothing wrong with looking at any piece of legislation.”

Republican Senator Todd Young told Punchbowl News on Tuesday that the bipartisan group was “at the putting pen to paper points.” Young said, “I think at some point, we’ll meet our different ideas, come up with some sort of reconciled bill.”

The Electoral Count Act first passed in 1887, 11 years after the contested election of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes, when several states sent multiple slates of electors to Congress. An electoral commission was formed to settle the dispute, which ended only when Democrats informally agreed to accept Hayes as president if he withdrew the remaining federal troops from South Carolina and Louisiana, thus ending Reconstruction and ushering in decades of segregation and discrimination.

Members of Congress cobbled together the Electoral Count Act in the hopes of avoiding another constitutional crisis ahead of a potentially close presidential election. The measure was flawed from the beginning, with one contemporary political scientist calling it “almost unintelligible.”

The measure’s flaws were laid bare in the run-up to January 6, 2021, the day on which Congress met to count the Electoral College results. Despite prodding from President Donald Trump and his allies, governors certified their states’ Electoral College results and did not send in alternate slates of electors. Vice President Mike Pence also ignored a dubiously reasoned memo by Trump lawyer John Eastman theorizing that the Electoral Count Act is unconstitutional and that the vice president could therefore choose to unilaterally declare Trump president.

But because the Electoral Count Act is so convoluted and imprecise, it opens the door for future election subversion if it is not reformed. “The act is subject to manipulation both by state officials and by Congress,” said Matthew Seligman, a fellow at Yale Law School who has written extensively on the Electoral Count Act.

The measure gives significant power to a governor to certify a state’s electors. Seligman raised concerns that a “rogue governor” could reject the legitimate slate of electors representing the candidate who won the state and instead send in a slate of electors representing their preferred candidate. Unless both chambers of Congress reject it, the governor’s illegitimate slate of electors would be accepted. If a governor sent in an illegitimate slate and another state official sent in the proper slate, Congress would have to decide between the two slates. If the chambers of Congress don’t agree on which slate is valid, the tie is broken by favoring the governor’s slate. So there’s a conceivable scenario where a Republican governor could send in an illegitimate slate of electors and, as long as one or both chambers of Congress are on their side, that slate would be accepted, even if another state official attempted to send in the legitimate slate. (I have to have broken a record for the most uses of the word “slate” in one paragraph, right?)

“Eliminating the dispositive legal weight that a governor’s certification has is critical,” Seligman said, suggesting that courts could have more of a role in checking manipulations by state officials. “The bottom line here is that there are risks at multiple points in this process. And we can try to reduce those risks by creating a greater role for neutral decision-makers like courts.”

King’s legislation would create a process of judicial review when a state government fails to follow its own preexisting procedures in appointing electors, a process that in all states is tied to the popular vote. It would also direct Congress to validate the slate of electors chosen by the court and not by partisan state officials. “The key point is that the state can’t change the rules after the election,” King told The Washington Post in an interview earlier in January. (King’s bill would also update the timetables to ensure that states have sufficient time to resolve postelection disputes and select their electors.)

The Electoral Count Act can also be reformed to clarify the roles of the vice president and members of Congress in counting electoral votes. Although Mike Pence chose not to attempt to overturn the election unilaterally, it’s possible that a future vice president may try to do so; one potential reform suggested in a report by the majority staff of the Committee on House Administration is to narrow the vice president’s role to the constitutional minimum.

Then there is the issue of Congress’s role in counting the votes. Under the current Electoral Count Act, one member of Congress from each chamber may object to a slate of electors. If a majority of both chambers votes to sustain the objection, the slate of electors will not get counted. One potential reform could be raising the threshold for initiating an objection; instead of a single member from each chamber, it could be one-quarter or one-third.

“The spectacle is bad, because it suggests to the American public that there’s some kind of dispute about what the real results of the election are, when there is no real dispute, because it’s just one member of the House and one member of the Senate,” Seligman said. He also argued that the Electoral Count Act should be reformed to clarify the standards for bringing an objection forward explicitly. King’s bill would address this issue by narrowing the grounds on which objections can be raised.

Although many Democrats are on board with reforming the Electoral Count Act, some have chafed at the idea of working on this issue as a replacement for the failed efforts on voting rights legislation. Senate Majority Leader Chuck Schumer recently called the concept “unacceptably insufficient and even offensive.” Schumer noted that reforming the Electoral Count Act would not address voter-suppression efforts on the ground. “If you’re going to rig the game and then say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” Schumer told reporters in early January.

White House Press Secretary Jen Psaki told reporters on Monday that “we’ve never said we were opposed to it,” but “it is not a replacement for the John Lewis Voting Rights Act or any of the voting rights federal legislation we were working to get across the finish line.”

“We are open to the conversations. We’ve been participating in the conversations,” Psaki said. “But it’s not a replacement.”

But experts warn that the risk of future election subversion is dire enough to necessitate reform, even if other voting rights measures are unable to pass in Congress. “It’s even more urgent than voter suppression, which is a real problem. Voter suppression is a problem, but a bigger risk we face is that election losers could be declared winners, and that’s at the top of my list,” Rick Hasen, an election law expert at the University of California, Irvine, told The Atlantic earlier this month. “Democrats must recognize that politics is the art of the possible, and democratic responsibility demands that we not sacrifice what is valuable and possible on the altar of the unattainable,” said Larry Diamond, a senior fellow at the Hoover Institution, in a New York Times op-ed.

Seligman said that it was necessary to reform the Electoral Count Act but ensure that it was done in a way to address the host of potential avenues for election subversion on both the state and federal levels.

“Congress absolutely has to amend the ECA. And in doing so, it has to design it in a way that recognizes the risks of manipulation by both state officials and Congress,” Seligman said. “If it is blind to the risks of state officials, particularly governors, manipulating the ECA, it will exacerbate the risks of manipulation in 2024 and beyond.”

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You can read the full article by Grace Segers here.

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