The bad news about Electoral Count Act reform is that the tiny number of Republicans who voted for the effort in the House of Representatives are all on their way out next year, either because they’re retiring or because right-wing challengers defeated them in their primaries. The good news is that the Senate version of the legislation to bolster the rickety 1887 law that lays out procedures for counting and certifying votes in a presidential election has secured 10 GOP co-sponsors, the magic number to overcome a filibuster. The finish line is in sight. Now, to protect our democracy’s foundations, Congress must prioritize passing something over passing something perfect.
The stakes of fixing the ECA become more obvious every day as election deniers secure slots on ballots nationwide — some for high office such as governor, and some for lower-profile local roles such as county clerk that nonetheless have the power to manipulate elections. The New Yorker recently documented a right-wing campaign to install believers in Donald Trump’s “big lie” as secretaries of state across the country; an analysis by The Post found that a dozen Republican candidates in key battleground races refused to commit to accepting the results of their elections, including some who declined to respond.
Thankfully, there’s plenty of room to improve the Electoral Count Reform Act drafted by the group led by Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) without dooming it, and a Rules Committee markup will be underway soon to do just that. Some of those improvements could surely come from the Presidential Election Reform Act that Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), both involved in the investigation of the Jan. 6, 2021, insurrection, introduced this month — and that just passed. That bill would require a greater proportion of legislators, one-third rather than one-fifth, to support objections to a slate of electors. The proposal also would eliminate archaic and confusing language allowing for challenges based on a vote’s not having been “regularly given.” Finally, it would set a more generous timeline for litigation over electoral vote certification.
Other differences between the two bills are just that: different. Both would point Congress toward a single “conclusive” slate of electors submitted by a state’s governor, and both account for the possibility of a so-called rogue governor submitting an unlawful slate — but in conflicting ways. Some experts in the area prefer the Cheney-Lofgren approach of having a judge designate a new official to certify the count; others prefer the Manchin-Collins tactic of asking the courts to decide directly. The same goes for the question of whether states ought to be allowed to determine what events qualify as “catastrophic” for the purposes of delaying an election, or whether federal legislators should take it upon themselves to enumerate categories that meet the standard. Neither answer is obviously superior to the other.
What is obvious, however, is political reality. Congress must pass a bill that can beat the filibuster in the Senate, and the lining up of co-sponsors proves the compromise the chamber struck this summer is the best bet. Senators must devote their efforts to bringing on board what they’ve learned, including from their colleagues across Capitol Hill, to enhance that proposal even further — doing all they can do, and accepting what they can’t.
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