The Washington PostDemocracy Dies in Darkness

Opinion Fix the electoral count law now, before Trump tries to exploit it again

Former president Donald Trump at a Republican-led event called, “Faith and Freedom Road to Majority” in Nashville on June 17. (Harrison Mcclary/Reuters)
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On one end of Capitol Hill last week, the House committee investigating the Jan. 6, 2021, Capitol attack heard damning testimony detailing how President Donald Trump and a coterie of partisan lawyers advanced a dangerous argument: that the vice president has the legal authority to overturn a presidential election when Congress meets to count electoral college votes. Trump official after Trump official testified that they knew it was wrong. John Eastman, a lawyer who advocated for the theory, acknowledged as much in front of Mr. Trump on Jan. 4, according to testimony from Greg Jacob, who was Vice President Mike Pence’s general counsel. But Mr. Trump and his allies nevertheless waged a relentless public campaign to pressure Mr. Pence to betray the nation’s democracy. Belief in this antidemocratic nonsense spurred the Jan. 6 mob, which infamously chanted, “Hang Mike Pence.”

On the other end of the Hill, a bipartisan group of senators finally made some progress in their effort to make another Jan. 6 less likely. The group, led by Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.), agreed on a general plan to reform how electoral votes are counted. Ambiguities in the law provided room for Mr. Trump and his acolytes to expound outré theories about the vice president’s powers. Jan. 6 also exposed other weaknesses, such as the ease with which members of Congress may object to and toss out electoral college votes. That led an alarming number of GOP lawmakers to try to disqualify electors from the swing states Joe Biden carried.

The bipartisan group would make explicit that the vice president has no unilateral authority to toss out a state’s electoral slate. The senators would raise the bar allowing lawmakers to object to a state’s electors. Currently one member of each chamber is enough to trigger a challenge; under the reform, 20 percent of each chamber would be required. Washington would also send money to the states to protect election workers, who have seen a wave of threats since Mr. Trump started spreading conspiracy theories about the 2020 vote.

These reforms are crucial, but not enough. The grounds on which lawmakers should be permitted to reject a state’s electors should be well-defined and extremely narrow. When a sufficient number protests a state’s electoral slate, it currently takes only a bare majority in each chamber to sustain that objection, which means a partisan Congress could overturn an election by a simple majority. The senators should raise this threshold. They should also ensure that federal courts are empowered to sort out any state-level meddling in the electoral college process — in case, for example, a governor sends in a bogus slate of electors.

There are also some things lawmakers should resist. Reforming the electoral vote counting process would require 60 senators — that is, substantial Republican support. Attaching other voting-related bills to this effort would kill it.

Americans went most of their history without having to worry seriously about arcane electoral college procedures. Even in closely fought, acrimonious presidential elections, losing candidates accepted their defeats with grace rather than seeking vulnerabilities in the law to exploit. The country no longer has that luxury. Congress should have no higher priority than fixing the electoral college process.

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