The Washington PostDemocracy Dies in Darkness

Opinion Could Congress really act (gasp!) to protect democracy?

Sen. Susan Collins (R-Maine) speaks to the media on Capitol Hill on Thursday. (Alex Wong/Getty Images)

There are still reasons for serious pessimism, but signs of progress are emerging from bipartisan talks over revising the antiquated law that governs how Congress counts presidential electors. If Congress can pass reform, it might avert another coup attempt.

NBC News reports that a working group of senators is “close to a deal” on fixing the Electoral Count Act of 1887. They appear focused on fixing holes in the ECA that Donald Trump sought to exploit to steal the 2020 election.

This is cause for (very) cautious optimism because the group also appears focused on a 2024 scenario that has mostly eluded attention so far despite being a time bomb at the heart of our democracy.

The group has reached consensus on some important things, according to NBC News. They’ve agreed on limits to the vice president’s role in counting the presidential electors in Congress, and on raising the threshold for Congress to object to electors legitimately certified by states.

Trump tried to exploit both those avenues. He pressured his vice president to abuse his power to subvert the electoral count, and he pushed Republicans to object to Joe Biden’s electors. So those reforms would help.

But NBC reports that the group is at odds over how the ECA should handle a corrupted elector certification process at the state level.

In a way, this is a perverse form of progress. That’s because the group — led on the GOP side by Sen. Susan Collins of Maine — had mostly focused on revising the role of the vice president and the threshold for congressional objections to electors.

But that neglected another very live scenario. What if a GOP-controlled state legislature or governor (say, a Gov. Doug Mastriano of Pennsylvania) certifies sham electors for the loser of the 2024 popular vote in the state, and a GOP-controlled House of Representatives (say, under a Speaker Kevin McCarthy) counts them?

Under the current ECA, those electors would stand, even if the Senate does not count them. That could tip a close election.

So the fact that ECA reform is now apparently focused on this scenario is important, even if the senators are at odds. But a lot depends on how the legislators address the problem.

Ideally, as ECA expert Matthew Seligman explains, ECA reform should build in a judicial backstop. If a state legislature or governor certifies sham electors and there’s a dispute over which electors are the rightful ones, it’s litigated in the courts, and Congress is required to count the electors that the courts deem the legitimate ones.

If that backstop is what senators are moving toward, that’s progress.

“All electoral slate disputes should be resolved by the courts by a date certain,” former federal judge J. Michael Luttig, a conservative, told us. “Congress should be bound to count only the slates that have been approved by the courts.”

“If that’s the direction that legislators are headed, it’s the right direction,” Luttig said. Given that Luttig is highly regarded in conservative circles, his endorsement of this approach could conceivably carry weight with Republican senators.

This approach sometimes draws objections: Should the final say over which electors count really be left to the courts?

But here’s the thing: Someone has to have the final say. And the courts appear to be a better option than leaving the decision to McCarthy.

Indeed, as election law expert Richard L. Hasen notes, the courts are probably the best available option. Conservative judges who disagree with liberal judges on most questions involving democracy joined with them to correctly litigate the disputes flowing from Trump’s efforts to steal the 2020 election.

“The courts were pretty united in how they dealt with subversion,” Hasen says. That could be grounds for optimism.

To be clear, it’s still very hard to see how 10 GOP senators end up supporting ECA reform. But at least there are signs the senators are focused on the right threats.

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