We cannot say we weren’t warned.
We’re talking about revising the Electoral Count Act (ECA) of 1887. That may sound dry and unexciting, but it would shore up hidden weaknesses that made the 2020 breakdown possible.
This week, a bipartisan coalition of pro-democracy experts will release a new blueprint laying out a way to revise the ECA along those lines. The report from the National Task Force on Election Crises — which includes dozens of experts in election law and voting rights — outlines major fixes.
How a future election might be stolen
The ECA’s language, which sets the process for Congress to count presidential electoral votes, is vague and prone to abuse.
The ECA sets a “safe harbor” deadline: If a state certifies its electors six days before the electoral college meets, Congress must count them, but it can technically throw out a particular electoral vote if it decides it was not “regularly given.” This phrase is supposed to indicate serious corruption or illegality but isn’t defined, leaving it open to bad-faith congressional objections to those electors.
The ECA is supposed to provide for resolution of resulting disputes in Congress over any state’s slate of electors. If a single senator and House member objects to a slate, each chamber must vote on them. If both chambers agree to invalidate the slate, they don’t get counted.
There are several main ways this can result in stolen elections. One is if a state sends one slate of electors — a valid one reflecting the state’s popular vote — and both chambers decline to count them, based on a bogus claim that they were not “regularly given.”
Imagine a GOP-controlled Senate and House both voting against counting the Democratic candidate’s valid electors from, say, Pennsylvania, based on the false claim that the election’s outcome was uncertain. In a close election decided by that state, the GOP candidate could prevail with a majority of electoral votes.
A second stolen-election scenario involves a state sending two competing slates of electors, one valid, and the other based on bogus fraud claims, in defiance of the popular vote. A GOP-controlled Congress could simply count the wrong one.
(A complication: The ECA stipulates that the slate certified by the governor is the one that must be counted. So in some permutations, the right one could end up getting counted, but in others, the wrong one could.)
In a third scenario, a GOP state legislature could send a rogue slate of electors, and a GOP-controlled House might count them while a Democratic Senate refused to. Because the ECA requires both chambers to invalidate a slate for it to be cast out, it might end up counting. (In all these scenarios, the courts could intervene, but we’d be in crisis territory at best.)
“The Electoral Count Act does not provide clear answers in all scenarios,” Genevieve Nadeau, counsel with Protect Democracy, told me. “It is susceptible to misunderstanding or worse.”
Trump pressured GOP state legislatures to set scenarios like these in motion, and many GOP members of Congress objected to correct slates on bogus grounds. Meanwhile, “audits” in Arizona and elsewhere are dry runs at manufacturing pretexts to raise sufficient doubt about a state’s popular vote to trigger such scenarios.
So we’ve been warned: In a closer election, under the right circumstances, such an effort could succeed.
Time for reform
The report recommends numerous ECA reforms. Among them:
- Dramatically raise the threshold for objections to electors in Congress, well above one member from each chamber. Reform could also codify what grounds must be met for objections to be heard by the full Congress.
- Clarify how congressional disputes over electors are resolved. The statute needs to explain precisely what happens in Congress in every such scenario.
- Clarify the “safe harbor” provision so it’s absolutely clear that if a state resolves its own disputes over electors by that deadline, Congress must count them.
- Clarify the vice president’s role so it’s clear it does not include resolving congressional disputes over electors.
These are not partisan reforms
Well-meaning Republicans should support such changes. These vulnerabilities are exactly what enabled Trump to exert tremendous pressure on various actors to help him corrupt the election. Reform would protect good-faith Republicans from coming under such pressure again, since such a scheme would no longer be workable.
This is why groups such as Republicans for Voting Rights support reforming the ECA, and why reform has the support of some right-leaning think-tank types.
What’s more, while there’s no equivalence here, Democrats have at times objected to electors. Republicans who claim Democrats are just as prone to electoral shenanigans should want such reforms to safeguard against them.
“It doesn’t matter if you’re on the left or the right,” former GOP congressman Zach Wamp (Tenn.) told me, noting that reforming the ECA has “nothing to do with party politics.”
“Updating the law is a nonpartisan way to avoid future crises,” Nadeau says.
As for Democrats, if few or no GOP lawmakers are willing to support such reforms, they have the option of acting alone.
Democrats can’t possibly want a scenario in which they end up failing to fix the ECA because they’re unwilling to end the Senate filibuster, and something like this happens again — and succeeds. Can they?