The debate over whether Democrats should pursue their large voting rights package or a narrower law aimed against election subversion became moot on Wednesday when Democrats could not muster up enough votes to tweak the filibuster rule to pass their larger package. Some Republicans are now making noise that they would support narrower anti-election subversion legislation centered on fixing an 1887 law known as the “Electoral Count Act.” Democrats should pursue this goal but think more broadly about other anti-subversion provisions that could attract bipartisan support. Bipartisan, pinpointed legislation is the best chance we have of avoiding a potential stolen presidential election in 2024 or beyond.
The wide-or-narrow voting bill debate was weird because it was never an either/or proposition. As I wrote in the New York Times a few weeks ago, “reaching bipartisan compromise against election subversion will not stop Democrats from fixing voting rights or partisan gerrymanders on their own—the fate of those bills depend not on Republicans but on Democrats convincing Senators [Joe] Manchin and [Kyrsten] Sinema to modify the filibuster rules. Republicans should not try to hold anti-election subversion hostage to Democrats giving up their voting agenda.”
With the wide option off the table, the operative question is how best to go narrow as more Republicans, including most recently House minority leader Kevin McCarthy, signal they might be open to such a bill. Sens. Manchin and Susan Collins are among a group of senators working on reform. Bipartisan buy-in is especially important because it means that both sides are more likely to feel bound by the rules if a future dispute arises.
Fixing the Electoral Count Act is a no-brainer. As Slate’s Mark Joseph Stern recently wrote, former President Donald Trump’s attempt to reverse his loss to Joe Biden in the electoral college depended upon exploiting holes and ambiguities in the poorly-drafted set of rules for Congress to certify Electoral College results from the states. Stern says Democrats should “seize the moment to get this done.”
If Republicans are really prepared to come to the table (and that remains a big if), Democrats should not limit themselves to small tweaks to the Electoral Count Act such as ones that would simply limit the vice president’s discretion in presenting state electoral college votes to Congress. Of course Republicans would be inclined to support such a change when the next counting of electoral college votes will be presided over by Democratic Vice President Kamala Harris.
Other potential ECA changes should include raising the threshold for objecting to state electoral college votes; right now it takes only one senator and one representative to raise an objection. There are other creative ideas out there as well, such as involving federal courts in resolving certain disputes when there are competing electoral college slates submitted by officials from a state. It is in the interest of both Republicans and Democrats to prevent manipulation of the process and ensure that the winner of the election is actually declared the winner. The more that can be clarified in advance behind the veil of ignorance, the better all who believe in democratic elections are going to be.
But ECA reform should not be the only thing on the agenda in any bipartisan talks to prevent subversion. I’ve proposed a long list of reforms that don’t have a partisan valence. Consider, for example, a requirement that voters cast their ballots using equipment that produces a paper ballot that can be recounted in the event of a dispute over the winner of the election. Some Americans still vote on wholly electronic voting machines, where the only proof of the election winner is code spit out by a computer. In an era when voters distrust election results and manipulators like Trump seek to sow doubt in election integrity, physically tangible ballots that can be examined by a court or other neutral actor in the event of a dispute are indispensable. A provision requiring paper ballots was included in the larger voting bill that went down to defeat earlier this week, but there’s no reason it can’t also be part of any ECA reform.
So too with laws raising the penalty for interfering with election proceedings or threatening or intimidating election workers and election officials. Some of this activity is illegal now, but not all of it. Those who stormed the Capitol on Jan. 6, 2021 with an intent to stop the counting of electoral college votes deserve serious punishment for interference with democracy; this kind of crime is much worse than, say, breaking into a shopping mall or even destroying government property unconnected to the democratic process.
It is not clear if Republicans would go along with another proposal that was in the larger voting bill that would create a federal right for voters to sue if the fair count of their votes were interfered with. It’s a strong, desirable remedy that would get federal courts involved in preventing attempts on the state and local level to cook the books, something which we can no longer rule out after the events following the 2020 election. Republicans tend to be skeptical of creating new rights, but federal courts (and the Supreme Court) are stacked with conservative judges, so maybe the aversion to court involvement can be overcome.
Republicans also may not be on board with laws that limit the overpoliticization of election administration on the state level. The Democrats’ larger voting bill had a provision that would have prevented states from firing certain election officials without good cause. That kind of federal limitation on state control over elections may be a bridge too far for some Republicans, and so Democrats might want to think about other ways of assuring that legislatures do not interfere with state election officials and states don’t interfere with local election officials to try to manipulate election processes or vote totals.
Finally, Democrats and Republicans should support pinpointed anti-subversion legislation aimed at stopping lies about when, where, and how people vote. As I argue in my upcoming book, Cheap Speech, such laws are likely constitutional under the First Amendment because they support society’s compelling interest in assuring that voters can effectively cast their votes, and they do not interfere with contested political speech: whether or not voters are allowed to vote by text (they are not) is not a debatable question. Such laws can help assure that elections are not manipulated by private or public actors seeking to interfere with the fair workings of the election process.
Many are disappointed that Democrats could not pass their larger voting package. I was (and remain) a strong supporter of the John Lewis Voting Rights Advancement Act, which was part of that package. But let’s not let the perfect be the enemy of the good. We will know soon enough if Republicans are serious about anti-subversion legislation. If they are, as Stern says, it is time to seize the moment for the good of American democracy.