That President Donald Trump attempted to steal the 2020 election is scary enough; that he or another candidate could steal it next time around remains a terrifying threat. This is what makes the passage of a just-introduced bipartisan proposal to reform the Electoral Count Act so essential.
The Electoral Count Act as it stands is full of ambiguities. According to one scholarly study, the losing party in nine of the past 34 presidential elections could have exploited gaping holes in the law to overrule the people’s decision. So far, enough has stood in the way — sometimes a general respect for norms, sometimes particular political courage — to prevent disaster. But the events following the 2020 election, including the Jan. 6, 2021, attack on the Capitol, made clear that the danger of a constitutional coup is real, and growing.
The bill introduced this week would create blocks against the specific maneuvers Mr. Trump attempted. It would clarify that the vice president’s role in certifying electoral votes is “solely ministerial”; that speaks to the former president’s efforts to coerce Vice President Mike Pence — with the help of a mob — into rejecting the votes of several states. It would raise the threshold for Congress to challenge a state’s submitted results from a single member of both chambers to at least one-fifth of members; that answers last year’s frivolous objections from six GOP senators and more than 100 representatives.
Perhaps most important are changes that would impede state-level mischief. By identifying governors as responsible for submitting a slate of electors, appointed according to rules in place before Election Day, the legislation would exclude competing lists from other officials. Better yet is a process to counter a rogue governor who lodges an illegitimate submission for approval by a friendly House or Senate. Under the reformed act, any such attempt could be challenged by a vice-presidential or presidential candidate in federal courts, to whose judgment Congress would be bound. Finally, the bill would ensure that state legislatures can’t simply override the popular vote by calling it a “failed election.”
The Electoral Count Reform Act will not fix everything, because it can’t fix everything: Some additional protections can be provided only by the states; others, including enhancements to the Voting Rights Act desired by Democrats, aren’t politically possible. Even now, the electoral reform portion of the Collins-Manchin package has only nine of the 10 Republican votes needed to surmount a filibuster. Democrats are right to dream of even more than is on offer today, and they’re right to push hard as they investigate the events surrounding the Jan. 6 insurrection. But they would also be wrong to say no to what they might be able to get from this legislation.