One of the most worrisome scenarios involving the 2024 election is the possibility that one or more GOP legislatures could send rogue presidential electors to Congress, in defiance of their state’s true popular vote.
That’s the date that Congress will count the electors from the 2024 election, and as you may recall, a lot of Republicans objected to President Biden’s electors on Jan. 6, 2021, though Congress did count the right ones. As you’ll also recall, then-President Donald Trump actually did try very hard to get some GOP state legislatures to send rogue electors, though they resisted.
But we can’t count on either of those things happening next time. With Republicans who recognized the legitimacy of Trump’s loss facing purges and primary challenges, such civic virtue will likely be in even shorter supply.
Which is why we need institutional reforms that will make this nightmare scenario less likely. One is for Congress to revise the Electoral Count Act, which sets the process for the congressional counting of electors.
In an interview with the New Yorker, election law expert Rick Hasen discusses what reform of the ECA might look like:
One of the provisions in there says you only need an objection from one senator and one representative in order to go into separate trial sessions to negotiate over whether or not Electoral College votes should be accepted or rejected. There should be a much higher threshold, and there should be a substantive standard for rejecting those votes, so we would not see something like a hundred and forty-seven members of Congress that voted to object to state Electoral College votes on January 6th.
What Hasen means is that Congress could require a lot more than one senator and one representative to object to electors before the full Congress has to consider such objections. And Congress could set a stricter evidentiary standard under which objections to electors could be lodged. On Jan. 6, Republicans objected to Biden electors based on fictions.
Hasen suggests other ideas — you should read the interview — but for now, suffice it to say that if Congress did want to act to reduce the chances of a stolen election or a constitutional crisis arising out of such a scenario, it could.
Which raises a question: If Republicans are so concerned about “election integrity” and “voter confidence,” isn’t this something they should support?
Republicans swear up and down that their escalating voter suppression efforts are really just about restoring “election integrity” via cracking down on (nonexistent) voter fraud, to reinforce voter “confidence” in election results. If so, supporting revisions to the ECA should fit the bill perfectly.
After all, this would not represent federal encroachment on how states run elections (a frequent objection to federal efforts against voter suppression and partisan gerrymanders), but rather clarification of already existing processes. And it would reinforce election integrity and voter confidence by making it less likely that electors are counted in defiance of a state’s popular vote.
Meanwhile, Republicans who profess pure motives about future elections should want this kind of reform for another reason. When Trump pressured state legislators in 2020 to send rogue electors, which they mercifully resisted, it put them in a terrible position.
If the ECA were clarified to make such a scheme far less likely to succeed in Congress, then that sort of pressure on them would be far less likely to happen, and they would not be forced to stand up against it in defiance of the party base. And by the way, in a closer future election, given the drift of today’s GOP, that pressure could very well be much more intense.
As we debate how to protect democracy, Democrats should pursue this reform in Congress. Most importantly, it needs to happen to avert disaster. But in addition, it will call Republicans’ bluff. Isn’t a revised ECA something Republicans worried about election integrity and voter confidence should want?