In the presidential election of 2020, the United States was the target of a legal coup for the first time in its history. Legal coups don’t rely on tanks rolling through the streets, and their damage to democracy is not—for the most part—measured in a body count. Legal coups don’t even cancel elections. They manipulate them.
The insidious danger of legal coups is that they come clothed in arcane procedures instead of military fatigues. Their foot soldiers are lawyers, not storm troopers. How many people would watch the House Select Committee’s January 6th hearings if there had been no violence in the Capitol, only byzantine legal machinations? But the peculiar power of legal coups is also their profound weakness. An attempt to overthrow the democratic order that is purportedly executed within the four corners of a piece of parchment can also be prevented by changing the words written on it.
On Wednesday, a bipartisan group of senators—eight Democrats and nine Republicans—took a major step towards doing precisely that. They released a proposed Electoral Count Reform Act, which would fortify the process through which states transmit their votes in the Electoral College to Washington, and the procedures under which Congress counts those electoral votes. The new law would amend the broken Electoral Count Act of 1887, which President Donald Trump sought to manipulate after the last election. These changes are urgently necessary. As I’ve argued, existing law is catastrophically vulnerable to manipulation by politicians in Congress and by state governors. By fixing those vulnerabilities—not perfectly, but pretty well—the new law would go a long way towards preventing a stolen presidential election in 2024 and beyond.
To see why we need the Electoral Count Reform Act, we need to see the problems with what it is replacing. The Electoral Count Act of 1887 was enacted after the Crisis of 1876, in which several Southern states submitted multiple, competing slates of electors to Congress. At the time, the law had no established way of resolving those disputes. Congress ended up creating an ad hoc Electoral Commission, but it only barely averted a showdown on Inauguration Day. Everyone realized the nation needed a better system.
Congress enacted the Electoral Count Act of 1887 a decade later in an attempt to stave off another crisis. It worked well enough for 133 years, but it was fundamentally flawed from the very beginning. It’s vague and immensely convoluted. But most importantly, it’s structurally unsound: It puts politicians in the position to manipulate a state’s electoral votes. The gravest threat is what I’ve called the Governor’s Gambit: if a swing state governor certifies a bogus slate of electors, and a single chamber of Congress—say, the hyper-partisan House—votes to count the bogus slate, then the bogus slate counts. It’s really that easy to steal a state’s electoral votes.
We came perilously close in 2020. Remember those fake “winning” electors for Trump? From a legal perspective, what made those electors “fake” rather than real was that the governors in those states actually accepted the legitimate results of the vote and never certified the losing Trump electors. We cannot be confident that future governors will hold the line against immense partisan pressure. Hence the need for the new law.
So what does it do, and how does it fix the problem? The most important change is that it ensures a “single, conclusive slate of electors” from each state. It designates a single state official—normally the governor, but the state can designate a different official if it wants to—who is authorized to submit the slate of electors on behalf of the state. Those fake electors from 2020 can’t mail in their own “self-certification” anymore. And crucially, it prevents that state official from going rogue and submitting his own preferred, bogus slate instead of the legitimate slate. How? By providing for judicial review in federal courts, with expedited review to the Supreme Court.
That means if a governor goes rogue and submits a bogus slate of electors, then the cheated candidate can file a lawsuit in federal court. That federal court—with expedited review to the Supreme Court—then determines whether the governor’s slate is the legitimate one or not. And if the governor’s slate is bogus, the federal court will order him to submit the legitimate one. That judicial review is the surest and safest way to prevent manipulation of the state’s slate of electors by the governor.
The new law would then bind Congress to count the electors—and only those electors—submitted by the governor (or the state’s designated official) “pursuant to the judgments of state and federal courts.” That last phrase is critical. It means that Congress will not count a slate of electors submitted by a governor who defies a court order. That defangs the Governor’s Gambit. And by binding Congress to count those court-blessed electors, the new law would prevent Congress from rejecting electors based on spurious objections like we saw on January 6, 2021.
There are other important provisions as well: it clarifies that the vice president’s role is merely ministerial and ceremonial, preventing the sort of vice presidential pressure scenario we saw on Jan. 6; it raises the threshold for objections triggering debate in Congress, which will reduce the sort of political grandstanding with hopeless objections that we saw in 2021 and in previous years; and most importantly it closes the loophole that permitted state legislatures from declaring that the state had “failed to make a choice” on Election Day and directly appointing its own electors instead. (On that last point, nothing that the Supreme Court might decide next year on the so-called “independent state legislature doctrine” would undermine the law’s changes—under Article II of the Constitution, Congress indisputably has the power to decide when states appoint electors.)
The Electoral Count Reform Act isn’t perfect. No law is or ever could be. And critics will point to two shortcomings in particular. First, its core feature is transferring the power to resolve disputes about electors from politicians to courts. I recognize, of course, that many people distrust the federal courts—particularly the Supreme Court, and particularly right now. Why, one might wonder, would we want to give the courts even more power over our elections?
Because the relevant question is a relative risk analysis. Under existing law, politicians in Congress and in governors’ mansions can manipulate the count of electoral votes. Pick the potential speaker of the House you trust least, whether that’s Kevin McCarthy or Nancy Pelosi. Then pick the potential swing state governor you trust least, whether that’s Doug Mastriano in Pennsylvania or Stacey Abrams in Georgia. The current law enables that hypothetical Speaker and that hypothetical governor to collaborate to steal the state’s electoral votes. Courts, whatever their many flaws, have got to be better than that. And unfortunately, in a world of flawed human institutions, there are simply no other options than those. So all we can do is pick the least-bad option among them.
Second, 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. There is still time to make modest changes to the bill to improve it; I have quite a few ideas on that front myself. But 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. Political manipulation of the electoral count is one of the gravest threats facing our democracy. It is not the only one. But if we let slip by the only opportunity to guard against this one, we may wake up on January 7, 2025 to a brave new world in the wake of a successful legal coup. And once we cross that Rubicon, there is no going back.
