The Washington PostDemocracy Dies in Darkness

Opinion The Electoral Count Act must be fixed. A new proposal doesn’t go far enough.

An electoral college ballot box is carried through Statuary Hall en route to the Senate on Jan. 6, 2021. (Amanda Voisard for The Washington Post)

Laurence H. Tribe is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard Law School. Erwin Chemerinsky is the dean and a professor of law at the University of California at Berkeley School of Law. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.

The law governing the counting of electoral votes in presidential elections is in desperate need of strengthening. But the changes now being considered in the Senate don’t go far enough.

President Donald Trump’s craven attempt to stay in power after his 2020 defeat exposed the frailties of the 1887 Electoral Count Act. The improved Electoral Count Reform Act, introduced in the Senate on July 20, is the product of herculean, months-long efforts led by Republican Susan Collins (Maine) and Democrat Joe Manchin III (W.Va.) to find common ground. As the Senate Rules Committee hears testimony on the measure Wednesday, it should correct some remaining flaws:

· Governor as “conclusive” certifying authority. The proposal addresses 2020’s “fake elector” scheme by identifying the state’s governor as the sole official with power to certify the electoral slate and making clear that any slate not certified by the governor is void. But the proposal creates the potential for chaos when it states that a governor’s certification is “conclusive,” and then, in seeming contradiction, provides for judicial review and congressional objections. A governor’s certification helps, but to deal with the danger of rogue governors, such certification should be clearly subject to challenge if it undermines the people’s vote.

· Period for judicial review. The six-day period provided for judicial review of disputes over certification is so short as to make meaningful review a mirage. That problem can be easily addressed by having Congress push the date for final state certification of electors — the “safe harbor” date — from mid- to late-December and have the electoral college meet closer to the Jan. 6 date on which the certified votes are formally counted in Congress.

· Number of necessary objectors. Under the 1887 law, it takes only one objector in the House and one in the Senate to bring the counting process to a halt and require congressional deliberation. The proposal moves the threshold from a single objector in each chamber to 20 percent. But recall that 139 Republican House members, nearly one-third, objected to certifying Joe Biden’s election. Twenty percent is not enough to avoid needless debate and should be increased to at least 33 percent.

· Basis for objections. Whatever the necessary percentage, the proposal also falls short in allowing members of Congress to object on the basis that a state elector’s vote is not “regularly given,” a phrase carried over from the 1887 law. What it means for a vote to be “irregularly” given is not defined and remains mysterious. At the very least, Congress must scrap any objection mechanism that allows “election-denying” members, however numerous, to cause politically motivated confusion.

· Role of vice president. Because the Constitution assigns the vice president, presiding over the joint meeting of Congress, a purely ceremonial role, the proposal specifies that the vice president has no authority to “solely determine, accept, reject, or otherwise adjudicate or resolve disputes” over electors. But this language curiously fails to exclude an imagined authority by a rogue vice president to “delay” certification. Delay was, after all, Trump’s final unlawful pitch to his vice president, Mike Pence.

· Reason for postponing election day. Under the proposal, only “extraordinary and catastrophic” events will allow a state to extend election day. This leaves too much latitude to state officials. There should at least be an illustrative list of examples such as hurricanes or cyberattacks.

· Timing of changes in state law. The biggest potential loophole might be the seemingly innocuous provision that “the laws of the State enacted prior to election day” are decisive when it comes to the legality of a state’s certification of electors.

This is a well-intended effort to prevent any state legislature from changing the rules after voting concludes — exactly what Trump, his lawyers and their allies sought to do by meeting with state legislators after the election was over. But as drafted, the bill’s apparent intent would be easy to circumvent. An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote. Eliminating that way of defying the people’s will is imperative.

The proposal before the Senate represents an excellent beginning. It must be strengthened to protect democracy in the final stages of selecting a president. But it’s equally vital to remember that not even a perfect way of counting the electoral votes at the tail end of the process can overcome unfair and undemocratic obstacles to casting ballots at the front end.

Our democracy will not be secure until we enact broader protection for voting rights. For now, however, improving the Electoral Count Reform Act would be a victory to celebrate.

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