Since a bipartisan group of senators, led by Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.), released their compromise proposal to reform the the Electoral Count Act of 1887 last month, legal scholars have identified serious problems with the bill. The bill’s authors should consider them carefully.
As written, the proposal contains of number of useful changes to the statute, but it would not have prevented former president Donald Trump and his shady lawyers from trying to exploit the statute’s ambiguities in 2020. The proposal needs some key fixes.
The Senate Rules Committee heard some of these solutions at a hearing on Wednesday. One witness, Norman Eisen, a Brookings scholar and former co-counsel for the House Judiciary Committee during Trump’s first impeachment hearing, offered critical advice, drawing on input from legal scholars, including Fred Wertheimer, president of the nonprofit Democracy 21, and former federal judge J. Michael Luttig.
Eisen outlined four significant changes to the bill. First, the proposal specifies that states would only be able to delay an election due to “extraordinary and catastrophic events.” Eisen argues that language is open to abuse and must be tightened to “avoid manipulation by the election denying officials now running to take control of the electoral process.” (There are dozens of candidates around the country running for governor, attorney general or secretary of state who would fall into this category.)
Second, the bill proposes a six-day window to resolve legal disputes over a state’s election result, but this is plainly insufficient. If courts are to render a dispositive verdict on the validity of electors, they would need more time (even with expedited appeal to the Supreme Court).
Third, the proposal does nothing to clarify what grounds a member of Congress can object to electoral votes. It states they may do so only if the electors are not “lawfully certified” or “regularly given.” These phrases are still thoroughly vague and could lead to the same sort of shenanigans Republicans attempted when they raised spurious objections to the 2020 electors.
Fourth, there are other confusing or contradictory aspects of the rules governing when members can object to electors. Eisen explains, for example, that the bill still refers to the electoral slates as “purported certificates,” which re-injects the same uncertainly that Trump and John Eastman sought to use to challenge certificates in 2020.
Other election gurus argue the reform bill’s proposed threshold for objecting to electoral votes is too low. The current statute requires one member from each chamber to object, whereas the reform bill would raise that to 20 percent of each chamber. Given how many MAGA lawmakers now sit in Congress, it’s far better to set the bar at 35 or 40 percent rather than 20.
Other scholars have pointed to a fundamental inconsistency with one of the ECA reforms. The proposal seeks to deem the governors’ certification as “conclusive,” but then provides for a federal court review, also intended to create finality. This is followed by the process for members of Congress to raise objections. So who has the last say? Governors, the courts or Congress?
And then there are those alarmed by the possibility that a clever state legislature can still change its election rules after voting takes place if it puts in place a “trigger” that it can activate at will to change the votes. As law professors Laurence H. Tribe, Erwin Chemerinsky and Dennis Aftergut recently explained in an op-ed for The Post, “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 Electoral Count Act was the weak link in our presidential election system that Trump and his cronies sought to weaponize to remain in power. Ultimately, enough officials (e.g., Justice Department attorneys, Vice President Mike Pence, Arizona House Speaker Rusty Bowers) remained devoted to democracy to short-circuit Trump’s preposterous scheme. But the country cannot depend on the good faith of elected officials to preserve our democratic elections, especially as Republicans attempt to install more election deniers in office. Congress has a shot to fix this guardrail; our democracy demands that lawmakers get it right.