Last week’s announcement by a bipartisan group of senators proposing reforms to the poorly written 1887 law that governs Congress’ counting of the Electoral College votes is a good half-loaf measure against election subversion. This is an opportunity that Democrats should jump at, despite their nervousness, if they have the chance to pass the bill with some Republican support this summer or fall. Any meaningful step that lessens the chances of a stolen presidential election in 2024 or beyond is worth pursuing, and the bill would be a significant step forward. But more will still need to be done.
The presidential election in the United States is uniquely vulnerable to risk compared to other elections because there are so many more steps that have to happen between the time voters vote and when the winning candidate finally assumes office, and at each step people can potentially act in bad faith and seek to mess with the process. Generally for presidential elections, voters cast ballots in their local areas and votes are tallied locally by election officials; state officials then canvass the votes and in some states a canvassing body pronounces the local and state winners; the governor (or another state official) has to send in the official results to Congress; Congress has procedures contained in an arcane 1887 law, the Electoral Count Act, for how to count those votes in the case of a dispute, and depending on how that vote goes there are different steps for choosing the president. Historically, though, it’s been pretty straightforward.
Former President Donald J. Trump’s attempts to prevent certification by Congress of the 2020 election results, however, showed the many pressure points for attempting to mess with free and fair elections in the United States. There were protests, intimidation, and false claims of fraud while local election officials were tallying the votes; Trumpists brought pressure on Republican members of local and state canvassing boards whose job it was to state the official vote totals; Trump tried to convince state legislators to send in alternative slates of fake electors to Congress, based upon a weak reading of a provision of the Electoral Count Act that allows legislatures to act in the case of “failed” elections; Trump tried to pressure Georgia’s secretary of state to mess with the vote totals, activity that is currently subject to investigation by the Fulton County district attorney; Trump tried to pressure then-Vice President Mike Pence, who had ceremonial role under the Electoral Count Act in presiding over Congress’ counting of the Electoral College votes, to accept the fake slates of electors or throw out legitimate electoral votes from some states that Biden won; Trump worked with Republican senators and members of Congress to raise bogus objections to the counting of Electoral College votes; and Trump encouraged the violence of Jan. 6 to disrupt the counting, by a mob intent on possibly capturing or killing the vice president and congressional leadership. There was even more than that: as we learned from the Jan. 6 hearings, Trump considered ordering the federal government seize voting machines, perhaps to order an illegal election do-over supervised by Trump cronies. Real banana republic stuff.
So far, Congress has done nothing about the risks of similar or worse activities next time, aside from the Jan. 6 hearings that have been raising awareness and potentially providing evidence for state or federal prosecution of Trump and his allies. Although the House impeached Trump for his post-2020 election activities, the Senate failed to convict him or take any steps under Section 3 of the 14th Amendment to find Trump ineligible to run for office for fomenting insurrection.
Since even before the insurrection on Jan. 6, 2021, I and many others have called for Congressional, state, and local action to minimize the risks of election subversion in 2024 or beyond. The next time around, of course, the path to stolen elections could look different. In 2020, for example, Trump was pressuring state legislators to send in bogus electors; next time, it could be a Trump-supporting governor (like Trumpist Pennsylvania gubernatorial candidate Doug Mastriano) who would break the rules to help the loser become the winner.
Ultimately, it’s pretty clear that one of the main pathways to subvert presidential election results is through manipulation of the byzantine and unclear rules of the Electoral Count Act. Some time before the 2020 election season started, I participated in a private meeting of election law scholars who sat around a Washington, D.C. boardroom seeking common understanding of the act’s meaning. Agreement was elusive because much of the language is opaque and contradictory, language which in the hands of people acting in bad faith could provide a pathway to a stolen election.
The Collins-Manchin Electoral Count Reform Act bill would fix a lot of the ambiguities and contradictions in the act and do much more. It not only would confirm what we’ve already known—that a vice president has no unilateral power to accept or reject election results. It would also raise the threshold for senators or representatives to object to valid electoral college votes, eliminate the chance that a state legislature could rely on that “failed election” language to send in alternative slate of electors, and provide a mechanism for federal judicial review of any action by a rogue governor to send in a fake slate of electors. These are all positive developments. (Matthew Seligman offered more details here at Slate.)
Some Democrats, such as Democratic election lawyer Marc Elias, and good government reformer Norm Eisen, have expressed concerns about certain provisions of the proposed Electoral Count Reform Act, and whether they would provide new pathways for subversion or limit the potential for judicial review. But as Ned Foley, Matthew Seligman, Derek Muller, and Bob Bauer and Jack Goldsmith have shown, these concerns are based either upon misreadings of what the act actually does, or quibbles with some small amount of unclear language that could be improved upon as the measure makes its way through the legislative process.
Right now there are nine Republican senators who have co-sponsored the ECRA, just one short of the 10 necessary to overcome a potential Senate filibuster, and Senate Minority Leader Mitch McConnell has indicated his general support for this kind of reform. It thus has a realistic chance of passing, so long as enough Democrats and Republicans are willing to go along. This opportunity is unlikely to last even if Democrats keep control of the Senate in the fall. Republican Sen. Rob Portman, for example, is a co-sponsor of the legislation and he is retiring from his Ohio seat at the end of his term. If he’s replaced by Trumpist candidate J.D. Vance, that will be one fewer senator on board for this urgent reform. And if Democrats lose the House, there’s no way that Kevin McCarthy, beholden to Trump for his support, would bring up such a measure.
In thinking about how to minimize the risk of election subversion, it is best not to think of it as an on-off switch where either we cut off the chances of a stolen election or not. It is better to think of all the incremental steps we can take to put up roadblocks against electoral malfeasance.
The ECRA is a major step forward to minimize these risks, for the reasons I’ve explained. Even though the ECRA does not address the risk of voter suppression, its introduction was welcomed by a coalition of civil rights and voting rights leaders who recognize that election subversion is an urgent priority.
There is obviously much more that should be done. When Sens. Collins and Manchin announced their bipartisan deal, there was a separate piece of proposed legislation that would help protect election workers and adequately fund the federal U.S. Election Assistance Commission, which helps states run fair elections. But there are only 5 Republican co-sponsors of that legislation. These proposals are crucial too, as are proposals to raise the penalties for attempting to submit fraudulent electoral slates or otherwise obstruct official proceedings.
And there’s a key part missing from the ECRA, one that I believe is absolutely crucial to minimize the risk of subversion: every voter should vote on a voting machine that produces a piece of paper that could be recounted by a judge or other neutral counter in the event of a disputed election. We cannot have anyone vote on fully electronic voting machines that—in this era of mistrust and chicanery—require people to trust the results of an election announced by computer software and without any paper trail.
On top of all this, we need legislation on a state and local level to prevent election subversion, such as that which guarantees transparency in vote tabulating by election officials and removes discretion of election officials when they fail to do their jobs as mandated by state law.
The Collins-Manchin bill is both a deal Democrats should grab while they can and not enough to fully insulate our elections from the risk of subversion. The key point, though, is that Collins-Manchin is far better than the status quo. It could help diffuse what professor Rick Pildes has termed an Electoral Count Act “loaded weapon” that may be deployed in 2024. There’s good reason to remove one potent weapon from the election subversion arsenal.
