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Opinion A new and improved version of Electoral Count Act reform

Security forces draw their guns as rioters try to break into the House Chamber at the U.S. Capitol on Jan. 6, 2021. (J. Scott Applewhite/AP)

The compromise proposal that Senate negotiators cobbled together earlier this year to reform the 1887 Electoral Count Act was a good start to prevent a repeat of the 2020 coup attempt. But the bill was far from perfect, as testimony before the Senate Rules Committee highlighted.

Fortunately, two members of the House select committee investigating the Jan. 6 insurrection, Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.) put forth their own improved version on Monday, as described in an opinion piece for the Wall Street Journal.

Their proposal makes a number of key changes to the law, which stipulates the certification of electoral votes. For example:

  • It confirms that the vice president has only a ceremonial role.
  • It specifies that members of Congress can only object to electoral votes if they concern “the explicit constitutional requirements for candidate and elector eligibility and the 12th Amendment’s explicit requirements for elector balloting.” Interestingly, the proposal makes clear that one objection might be that the candidate is ineligible under Section 3 of the 14th Amendment, which bars from federal office anyone who “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” In other words, it would serve as a trip wire for challenging former president Donald Trump on the basis that he instigated an “insurrection.”
  • It raises the threshold for Congress to vote on an objection from one lawmaker in each chamber to one-third of each chamber.

The proposal also avoids some of the confusing language included in the Senate proposal regarding state certification. The House version is a helpful and precise description of the correct process:

Governors must transmit lawful election results to Congress; if they fail to fulfill that duty, or another official prevents the lawful results from being transmitted, candidates for the presidency should be able to sue in federal court to ensure that Congress receives the state’s lawful certificate. These suits would occur before Congress counts electoral votes, and should ensure, in all cases where one candidate has the majority of electoral votes, that Congress’s proceeding on Jan. 6 is purely ministerial.

In foreclosing the sort of maneuver that Trump lawyer John Eastman concocted, the proposal makes clear that “the rules governing an election can’t change after the election has occurred.” In short, the state legislature cannot upset the voters’ choice.

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And in an inspired bit of lawmaking, the revised ECA would specify that it is a violation of the Constitution to refuse to count and certify ballots according to the rules in effect on Election Day. A candidate can go to federal court to seek an injunction against state officials who refuse to do so. That can then be appealed directly to the Supreme Court. (A treble damage provision is also included in an attempt to deter frivolous litigation.)

Finally, the proposal also clears up the existing ECA and improves on the Senate plan by specifying that the law’s “failed election” provision only applies to “a genuine catastrophic event affecting enough ballots to swing the outcome of the state’ election.”

Norman Eisen, a Brookings scholar who provided testimony to the Senate Rules Committee on the Senate proposal, tells me, “The bipartisan House proposal represents another step forward to getting to a bicameral agreement.” He approves the House version’s expansion of the period allotted to resolve legal disputes over a state’s election result from six to nine days. It also avoids language included the Senate version that characterized a governor’s certification of a state’s results as “conclusive,” reducing “the risk of a rogue governor,” Eisen says.

The bill will come to the House floor this week. If it passes (as is likely on a near party-line vote), it will go to the Senate. The Senate Rules Committee, which took testimony pointing out the flaws in the original Senate proposal, will then take up the House version in the normal process of legislative back-and-forth. In other words, we seem to be inching toward the best version of ECA reform possible.

We will soon find out whether there are 10 Republicans who sincerely want to block future coup attempts by anti-democratic candidates and their shoddy lawyers. Now is the time to construct a significant barrier to prevent a repeat of Jan. 6. With Democratic majorities in the House and Senate at risk, such reform cannot wait until after the midterm elections.

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