The violence that took place at the Capitol on Jan. 6, 2021, must never happen again. The recently released bipartisan proposal to reform the Electoral Count Act is a good step to make sure that’s the case.
The ECA serves a real function. The Constitution’s failure to provide a mechanism to resolve disputes over a state’s electoral college votes resulted in Congress appointing an ad hoc commission to determine who won the contested 1876 election, Republican Rutherford B. Hayes or Democrat Samuel Tilden. Shortly after, Congress passed the ECA to provide a method to resolve any future election disputes.
But as President Donald Trump’s challenges to the 2020 election festered, the law also provided the basis for the specious claim that Vice President Mike Pence had the constitutional authority to set aside a state’s votes altogether on Jan. 6. Clearly, it needs to be updated.
The proposed reform would eliminate many of the loopholes and inconsistencies in the law that led to the violence that day. First, it would change the current law’s absurdly low threshold to file a challenge to a state’s electoral votes from one member in each chamber to 20 percent of both the House and Senate. Second, it would clearly state that the vice president’s role in opening the ballots and presiding over the process is purely ceremonial. No more calling for a vice president to go rogue and try to undo their own election defeat.
Perhaps the most important reform has nothing to do with what happened on Jan. 6. While all states allocate their state’s votes according to a popular vote on Election Day, the Constitution does not require that. The document vests the power to allocate electoral votes in each state’s legislature. Theoretically, then, a legislature could choose to appoint its own slate of electors even after Election Day. Indeed, some Trump partisans urged GOP-controlled legislatures to do precisely that.
The proposed reform would do away with that possibility. It prevents a state from changing the rules regarding the allocation of its electoral college votes after Election Day. A state may choose to appoint its electors, but only if its legislature does so by law before the people vote.
Together, these provisions would help prevent a sore loser from using temporary control over the political process to overturn an election. It would ensure that the people’s choice, as mediated by the electoral college, would prevail, and it would push any challenges to a state’s result into courts rather than political bodies.
That’s the right approach in both cases. One need only think about our national principles a little to see why. The Founders made clear that one of the biggest threats to republican government was the ability of a politically interested actor to seize power without popular consent. Their concern was an overly powerful executive, which they feared could turn into a monarch. But any entity with the motive and power to entrench an individual in office is a threat to our system of government.
Trump’s attempt to use the ECA for precisely that end shows that Congress had inadvertently given itself that power. The proposed reforms substantially remove that threat.
Our democracy is suffering from many problems, the greatest of which is our increasing tendency to view one another as enemies rather than adversaries. The longer such divisions fester, the more we will see election outcomes as an existential threat. Against that backdrop, anything that reduces the temptation to break our democracy under the pretext of saving it is a good thing.
Electoral Count Act reform won’t save our republic, but it will help to preserve it. Congress should pass the proposal rapidly and with a large, bipartisan majority.