The Washington PostDemocracy Dies in Darkness

Opinion Democrats should take yes for an answer on Electoral Count Act reform

Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) talk before a news conference on Capitol Hill on Jan. 22, 2018. (Melina Mara)

Democrats have tried multiple avenues to strengthen voting rights. They tried to block Republican bills to suppress voting or subvert elections. They tried to correct the Supreme Court’s egregious mistake disabling the “preclearance” provisions of the Voting Rights Act. They tried to replenish democracy, such as by attempting to end gerrymandering or ban dark money. The Republicans would have none of it.

Nevertheless, a sliver of opportunity remains. Congress now has a chance to correct the legal ambiguities exploited in the coup attempt after the 2020 election. We’re about to find out if even that minimal election reform is possible.

A bipartisan bill negotiated under the leadership of Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) would make some needed changes in the Electoral Count Act, the vague and problematic law that Donald Trump and the defeated former president’s allies tried to exploit to remain in power. The Post reports: “Collins and Manchin’s proposal is expected to set a deadline for when states can change their rules, clarify that states cannot choose their electors after Election Day, create more stringent requirements for Congress to object to the certification of a state’s electors and clarify that the vice president’s role is ceremonial with no power to reject electors.”

It’s fitting that the bipartisan team rolled out their proposal this week, just as the House select committee investigating the Jan. 6, 2021, insurrection wraps up its hearings that have exposed Trump’s conspiracy to install phony electors and strong-arm the vice president. The proposal would go a long way to prevent that from happening again. It would also amend rules governing the presidential transition (which Trump delayed as he pursued his scheme to steal the election) and make changes to on how the U.S. Postal Service operates in an election.

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There are plenty of other items that should be included, such as robust protections for election workers. But even if the bill contains only the limited provisions listed above, it will be more than worthwhile. As David Becker, executive director of the Election Center for Innovation & Research, tells me, “Anything that strengthens the guardrails of democracy and creates a stable and predictable process is a good thing.”

Some voting rights lawyers are disturbed by the proposal’s provision that would provide an expedited process to resolve disputes in federal courts. But there must be an option for expedited court review somewhere, and disputes would likely wind up in federal court anyway. State court resolution is no panacea.

The sole test for the ECA reform bill should therefore be whether it makes the current system less vulnerable to abuse, fraud and coup plots. By limiting the vice president’s role in counting electoral votes, raising the bar for members of Congress to challenge electors and preventing mischief from state legislators, it meets that test. However, if these items are not in the bill - or if it creates more ambiguities - then the Senate should try again.

Democrats can preach all day about the need for a broader bill, and they would be right. But until they control the presidency, the House and a Senate majority sufficient to alter the filibuster, they are not going to obtain more than this.

Taking a win and coming back for more when they have the votes are the essence of democracy — the very thing Democrats are striving to protect. Civil and voting rights have always been attained incrementally (and lost abruptly). So it must be with reforms to make it harder for a replay of the coup attempt.

That Republicans are willing to entertain this sort of bill speaks volumes about their own concern that Trump might try his tactics again. Democrats would be wise to take yes for an answer - if the bill really is as good as advertised.