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Opinion Inching closer to an ECA deal — and insurance against a 2024 coup

In an image taken from video, Kyle Fitzsimons of Lebanon, Maine, center, charges toward a line of police guarding the U.S. Capitol on Jan. 6, 2021. Fitzsimons was convicted on Tuesday on charges he assaulted a police officer and obstructed an official proceeding. (U.S. District Court for District of Columbia)

Two critical steps forward have occurred since senators revealed an initial bipartisan proposal to fix the Electoral Count Act to prevent another coup like the one President Donald Trump nearly pulled off. These advances make passage of a solid reform bill possible.

First, House Jan. 6 committee members Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.) last week introduced legislation that cures some of the infirmities in the Senate bill (e.g., expanding the time to litigate election challenges, preventing a rogue governor from certifying someone who didn’t win the state).

Second, after last month’s fruitful hearing, Senate Rules Committee chair Amy Klobuchar (D-Minn.) introduced an amendment to the Senate compromise proposal. That bill on Tuesday passed through committee by a 14-1 vote and got the backing of Minority Leader Mitch McConnell (R-Ky.).

Klobuchar’s amendment clarified that a panel of three district judges set up to review challenges to the electoral slate would focus only on whether a state’s governor issued the correct certificate of electors. This would prevent a rogue governor from flipping his state and also address concerns that the six-day window for litigation is too short. Klobuchar’s amendment also specified that “failed elections” allowing extension of voting only occur when there are “force majeure events that are extraordinary and catastrophic.”

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There are still differences — e.g., six vs. nine days for litigation — between the House version and the Klobuchar-amended Senate version. But these should be easily resolved. Democratic elections attorney Marc E. Elias of Democracy Docket argues that Klobuchar’s bill improved the original by providing for both state and federal jurisdiction, solving the runaway governor problem and making Supreme Court review non-mandatory (as are other matters).

Likewise, former co-counsel for House impeachment managers Norman Eisen (who testified before Klobuchar’s committee) tells me: “The bills are not that dissimilar. The Senate version has already improved, proving the importance of pointing out flaws and pushing for them to be fixed.” He adds that, “if anything, McConnell’s endorsement is a signal that the bicameral bipartisan negotiators are in the ballpark and he did not want to be left outside the gates without a ticket to the game.” (Tabatha Abu-el Haj at Election Law Blog, led by Rick Hasen, also agrees that the changes “do not alter the overall intent or structure of the bill, but do clarify certain provisions while also somewhat narrowing differences with the ECA reform bill that recently passed the House.”)

It is no coincidence that the growing bipartisan consensus follows the Jan. 6 committee’s blockbuster hearings sketching out Trump’s phony-elector scheme and effort to pressure Vice President Mike Pence to violate his oath. While Sen. Ted Cruz (R-Tex.) — the lone no in Tuesday’s Rules Committee vote — might still be rooting for chaos, it seems many on the GOP side (and especially McConnell) have figured out that the lure of a coup is bad for their party. In other words: They don’t want to relive 2020, either.

We should keep in mind that there is no perfect solution to prevent a coup. If corrupt state legislators, a corrupt governor and a corrupt Supreme Court want to reverse the voters’ choice for president, no statute will protect our democracy. However, by adding belts and suspenders — and exposing Trump’s mendacity in 2020 — we can significantly reduce the chances of this happening.

The real safeguard rests with voters. With so many GOP election deniers on the ballot, the only guarantee for our democracy is to elect people who eschew violence, take their oaths seriously and believe that the voters’ choice must prevail.

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