July 22, 2022

Electoral Count Act

“A bipartisan group of senators agreed Wednesday on proposed changes to the Electoral Count Act, the post-Civil War-era law for certifying presidential elections… Under the proposed changes, the law would be updated to ensure the governor from each state is initially responsible for submitting electors, as a way to safeguard against states sending alternative or fake elector slates. Additionally, the law would spell out that the vice president presides over the joint session in a ‘solely ministerial’ capacity, according to a summary page. It says the vice president ‘does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.’” AP News

Both sides support the proposal, arguing that the Electoral Count Act needs to be updated:

Former President Jimmy Carter and former Secretary of State James A. Baker III write, “The [Electoral Count] act is an antiquated, muddled and potentially unconstitutional law that allows uncertainty during a critical step in the peaceful transfer of power… Weaknesses in the law started to become apparent after the 2000 election. On Jan. 6, 2001, as well as in 2005 and 2017, some members of the losing candidates’ political party objected to electoral slates from some states. In 2021, the ambiguities of that law helped lead to the violent assault on the U.S. Capitol as efforts were being made to toss out several states’ slates of electoral votes…

“There will be a time and place to debate important proposals addressing voter access and turnout, ballot security and other election-related issues. But such competing efforts should not be included in current talks about reforming the Electoral Count Act. Doing so would be a recipe for gridlock and failure… The need to reform the Electoral Count Act is too great for our elected leaders to get bogged down in the zero-sum game of politics that characterizes Washington today.”
Jimmy Carter and James A. Baker III, Wall Street Journal

This is a very good set of reforms. The bulk of them are directed to avoiding a repeat of the sorts of problems we saw in 2020 — a situation in which the states all did their jobs but members of Congress, at the behest of the defeated incumbent president, moved to sow doubt about the outcome by capitalizing on the vagueness and looseness of the ECA…

“Some Democrats wanted to go further, and give the federal courts more jurisdiction over the ways in which state officials enforce state election laws. This was a disastrously misguided idea, and it is very good that this proposal avoids any such path. This is a significant success for a number of Republicans who fought hard against that approach — particularly Ben Sasse and Mitt Romney. And it is the reason why I think this bill could get enough Republican votes to pass the Senate. The restraint shown in this proposal suggests this bipartisan group really wants to get these reforms enacted.”
Yuval Levin, National Review

“While all states allocate their state’s votes according to a popular vote on Election Day, the Constitution does not require that. The document vests the power to allocate electoral votes in each state’s legislature. Theoretically, then, a legislature could choose to appoint its own slate of electors even after Election Day. Indeed, some Trump partisans urged GOP-controlled legislatures to do precisely that…

“The proposed reform would do away with that possibility. It prevents a state from changing the rules regarding the allocation of its electoral college votes after Election Day. A state may choose to appoint its electors, but only if its legislature does so by law before the people vote. Together, these provisions would help prevent a sore loser from using temporary control over the political process to overturn an election. It would ensure that the people’s choice, as mediated by the electoral college, would prevail, and it would push any challenges to a state’s result into courts rather than political bodies. That’s the right approach in both cases.”
Henry Olsen, Washington Post

"The draft proposal would definitely keep states from postelection changes in the electoral-vote process like the ones Team Trump was encouraging Republican legislators to undertake. And it would clarify that a single legally designated authority (typically the governor) will certify electors by a set deadline. If a rogue governor seeks to reverse the results, federal judges can intervene, with a quick review by the U.S. Supreme Court…

“This last provision will raise eyebrows among Democrats who aren’t exactly enamored of the Supreme Court right now. But for all their sins, Republican-appointed federal judges did not lift a finger to help Trump’s election coup, and the burden on rogue governors to justify a change of results will be very high. Plus other reforms in the proposal should significantly reduce the likelihood of Supreme Court review ever happening.”
Ed Kilgore, New York Magazine

“Critics will point to the many profound threats to democracy that electoral count reform doesn’t address. It doesn’t protect voting rights. It doesn’t advance campaign finance reform. It doesn’t do anything at all to eliminate the other greatest threat to American democracy, partisan gerrymandering in Congress and state legislatures. It doesn’t, for that matter, eliminate the Electoral College and replace it with a national popular vote. The critics are right. The Electoral Count Reform Act does none of those things. The political reality, however, is stark: the choice we face is the Electoral Count Reform Act or nothing

“The immense yet unsuccessful efforts earlier this year to pass comprehensive election reforms showed that there is simply insufficient support in Congress currently to do any of the important things that this bill doesn’t do. What matters, though, is what this bill does do.”
Matthew A. Seligman, Slate

A libertarian writes, “In the end, of course, any law limiting or directing the behavior of public officials is only as good as the officials charged with executing it and those charged with holding each other accountable. The government is just people; flawed, selfish, and politically motivated people. Still, these changes make a lot of sense. The bill would clarify some of the vagueness that Trump attempted to exploit and would establish clearer boundaries for every aspect of the potentially fraught vote-certification process—which, as we all learned 18 months ago, relies on officials from the local level all the way up to the vice president of the United States… The Senate's election reform bill is surprisingly logical and bipartisan.”
Eric Boehm, Reason

See past issues

Get troll-free political news.

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.