The Washington PostDemocracy Dies in Darkness

Opinion Reforming the Electoral Count Act is crucial to our democracy. And it must be done on a bipartisan basis.

The U.S. Capitol is reflected in an entrance to the Washington Monument at sunrise on Jan. 18. (Eric Lee/Bloomberg News)
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There has been a lot of depressing rhetoric lately about purportedly partisan assaults on our democracy. That’s why recent bipartisan talks to rewrite the Electoral Count Act of 1887 are a refreshing and much-needed antidote to the doom-mongers’ wails.

The Electoral Count Act is the measure that regulates how Congress can hear and resolve challenges to a state’s certification of electoral votes. It was adopted in the wake of the election of 1876, when the votes from four states — Florida, South Carolina, Louisiana and Oregon — were disputed. The matter was sent to a 15-person congressional commission, which voted 8 to 7 along party lines to award the votes to Republican Rutherford B. Hayes. That gave him just one more electoral vote than he needed to win the presidency, even though he lost the popular vote by three points.

The ECA was intended to provide an orderly process in the event of another 1876-style dispute. But both parties in recent years have used the law to object to election outcomes in hotly contested presidential races. It has been manipulated to effectively make Congress a super court that can hear evidence and decide whether a slate of electors was invalidly selected by a state — with Congress being the sole determiner of what invalidity means.

The fact that such challenges were easily voted down after both the 2004 and 2020 elections does not mean the process is secure. In our partisan times, people can be easily whipped into a frenzy because they falsely believe their candidate had been unfairly deprived of victory. That’s exactly what former president Donald Trump did. The Jan. 6 riot was the result.

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That’s why it’s good news that at least 14 senators met via Zoom on Monday to discuss changing the law to remove any doubt about its purpose. The talks are still in their early stages, but sound ECA reform would eliminate the ability of members of Congress to raise objections to any state’s votes that were not already in question by the state itself. Once that ability is removed, Congress’s role would be purely ministerial except in cases where the state itself sent competing slates for Congress to adjudicate. That hasn’t happened in more than a century.

It’s crucial to remove this temptation for democratic subversion, and that it is done on a bipartisan basis. Democracy is sound only when all sides accept an outcome’s legitimacy, even if some deplore the outcome. That requires setting rules of the political road in every step of the process that all sides can recognize are fair and transparent. It’s becoming increasingly difficult for the two parties to compromise on many matters of this process, and that itself is troubling. But if they can reach agreement on this, they can show that bonds of comity still count for more than notes of discord.

ECA reform won’t end our bitter partisanship. Indeed, if the act isn’t rewritten carefully, it could simply kick the can over to states. Reform, for example, should prevent a defeated party from sending its own slate of electors for consideration without any official certification by a legitimate state body, such as the governor, legislature or the courts. If that avenue isn’t shut off, then aggrieved electors themselves can force Congress to consider damaging and specious challenges. That’s why discussions must take time and come up with a solid, comprehensive approach that allows Congress to decide on truly genuine disputes while eliminating purely partisan challenges as much as possible.

Republican self-government is the heartbeat of American national identity. We cannot allow legitimate partisan differences to obscure that basic fact or impede our ability to engage in that activity. Bipartisan ECA reform is thus as important for what it says about our ability to rededicate ourselves to our national heritage as it is for its concrete improvements.

If the two parties can’t say that our democracy matters more than their victories, then that heritage is living on borrowed time. Don’t let partisans sell our birthright.

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