The Washington PostDemocracy Dies in Darkness

Opinion Democracy remains under threat. Here is one thing that Congress still might do.

Arizona election officials and observers participate in a ballot adjudication test in November 2020. (Ross D. Franklin/AP)
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There can be no substitute for comprehensive voting rights legislation that Senate Democrats tried to pass several times over the past year but were blocked at every turn by Republican filibusters. But that doesn’t mean there is no hope of congressional action to protect U.S. democracy against partisan politicians seeking to undermine or overturn legitimate elections. Such a threat, once inconceivable in this country, was made real by last year’s assault on the U.S. Capitol and that perhaps explains why some GOP senators have now signaled interest in at least one needed democracy reform.

The focus of the Democrats’ failed bills was on ensuring Americans access to the ballot box — a response to voting restrictions imposed in 19 states by Republicans. But at least as important is ensuring that Americans’ votes are counted fairly and the results respected. U.S. democracy’s most severe test in modern times came when President Donald Trump tried to overturn the 2020 presidential election by pressuring local election officials, state lawmakers, Congress and the vice president. He failed, but exposed critical vulnerabilities in the nation’s political system.

Foremost is the 1887 Electoral Count Act, a creaky law prescribing how Congress tallies presidential electoral votes. This process was the focus of the Jan. 6 attack. The mob that assaulted the Capitol was riled by Mr. Trump’s insistence that federal lawmakers or then-Vice President Mike Pence could object to counting the electoral votes that states had submitted. Congress should change the law to make clear that the vice president has no power to object, overturn or otherwise refuse to count states’ electoral votes. Also needed is a curb on the ability of members of Congress to launch similar partisan maneuvers.

Currently, it takes only an objection from a single member of each chamber to force a session on whether to accept a state’s electors — and majority votes in each chamber can sustain such an objection. This raises the possibility that a partisan congressional majority can throw out election results it does not like. If Congress is to have any role in counting electoral votes, these thresholds must be far higher. The basis on which lawmakers can lodge objections must also be explicit and narrow — for example, that an elector was constitutionally unqualified to cast an electoral vote.

The law should treat as presumptively valid electors certified by governors, under court oversight, according to the popular vote systems in each state. Likewise, the law should refuse to acknowledge electors state legislatures might try to appoint outside this process, after a vote has occurred. Congress should extend protections to election workers, both from partisan officials seeking to pressure them and from members of the public who might threaten them with harm. And the federal government should provide money for better election equipment, staffing, training and statistically-sound vote auditing.

Sen. Susan Collins (R-Maine) has convened a bipartisan group to discuss such sensible changes; Sen. Angus King (I-Maine) has put forth a smart proposal. These are modest reforms to which no one who cares about the nation’s democratic system could reasonably object.

Senators cannot let this convergence of interest in reform pass. What they do now could determine whether the United States faces a crisis on the scale of — or worse — than what the country experienced on Jan. 6, 2021.

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