As voters approach elections that could elevate political saboteurs to crucial offices in multiple battleground states, Democrats are working to forestall a disaster in 2024. To that end, this week, the House will vote on a bill that reforms the Electoral Count Act of 1887 — in hopes of preventing future efforts to exploit holes in that arcane law, as President Donald Trump tried in 2020.
To understand these reforms, you need to become familiar with what one might call “the Mastriano Scenario.”
Imagine that virulent insurrectionist Doug Mastriano, the GOP nominee for governor of Pennsylvania, pulls off a win this November. Then, in 2024, Gov. Mastriano corruptly certifies the state’s presidential electors for Trump or another GOP candidate, in defiance of the popular vote choosing the Democrat. If a GOP-controlled House opted to count those fake electors, they might stand, resulting in chaos or worse.
That could very well happen under the current law regulating such things — the Electoral Count Act — if it is not reformed. Revising the ECA is key to preventing this (among other things) from happening.
The new ECA reform bill in the House — called the Presidential Election Reform Act — is the work of Reps. Zoe Lofgren (D-Calif.) and Liz Cheney (R-Wyo.). The Democratic-controlled House will vote on it within days.
The bill would do a lot of things, such as clarifying that the vice president’s role in counting electors is merely ceremonial. But for our purposes here, what matters is the bill’s safeguards against the Mastriano Scenario.
In this regard, the House bill attempts to improve on another ECA reform bill that a bipartisan group of senators introduced in July. That Senate bill set important standards: It specified that states must appoint electors in compliance with election rules in place before the election, so a state legislature can’t just appoint the popular vote loser’s electors. It established a new judicial review mechanism to oversee that process.
The new House bill goes further in safeguarding against future coup attempts. This is deep in the weeds, but bear with us.
Under the Senate bill, if a corrupt governor certifies electors in defiance of the popular vote, an aggrieved candidate can take it to court. A federal judicial panel would weigh in and designate which electors are the legitimate ones, subject to Supreme Court review. Congress would be required to count those legitimate electors.
But there, a problem might arise. If the corrupt governor simply ignores the new law and disregards what the court said — and certifies fake electors in defiance of that court ruling — then a GOP-controlled House of Representatives could also ignore the new law and count those fake electors.
The House bill adds an additional safeguard: If a corrupt governor defies that judicial panel review and refuses to certify the electors the panel deemed the legitimate ones, the House measure empowers that panel to designate another state official to certify those legitimate electors.
Congress would then be required to count those electors. This would effectively take the weapon out of the hands of the corrupt governor entirely.
“If a rogue governor refuses to do his constitutional duty, this bill authorizes the court to order another state official to do it instead,” legal scholar Matthew Seligman, an expert on the ECA, told us. Seligman noted that this additional safeguard improves on the Senate bill by “strengthening” it against a governor who has gone truly “rogue.”
That “rogue” scenario could happen if Republicans win governorships in swing states other than Pennsylvania. For instance, in Arizona, GOP nominee Kari Lake has made questioning the 2020 election central to her campaign. In Michigan, nominee Tudor Dixon has spread Trump’s 2020 lies.
If an election comes down to one or more states with rogue governors, it would be surprising if they didn’t attempt to run this coup scheme. And given that more than half the members of the next House GOP caucus are expected to be full-blown deniers of the legitimacy of Trump’s 2020 loss, it would be surprising if a GOP House didn’t play along.
We shouldn’t have to lean so heavily on the goodwill of state officials to ensure that the person who wins the presidency takes office. But Trump has revealed the enormous flaws in our system, as well as the conscious intent of his supporters and the Republican Party as a whole to exploit them.
Once the House passes ECA reform, the next step will be merging it with the Senate version. It’s absolutely critical to get this done before Republicans take over the House and make preventing the next coup impossible.