A Plan to Fix the Electoral Count Act Is Taking Shape

Electoral votes being brought into a joint session of Congress on January 6, 2021. Photo: Caroline Brehman/CQ-Roll Call, Inc via Getty Imag

Even as Democrats and Republicans wrangle over the obstruction of the former’s voting rights legislation by the latter, quiet discussions have been under way on a possible bipartisan fix for the Electoral Count Act of 1887, the arcane and confusing statute that enabled last year’s attempted election coup by Donald Trump. These discussions are very unlikely to reach fruition until Congress has dealt definitively with voting rights (likely by failed Democratic efforts to break a Republican filibuster or convince Joe Manchin and Kyrsten Sinema to support a filibuster reform), which could take a while.

But thanks to reporting from the Washington Post’s Greg Sargent, we now know significantly more about the substance of the Electoral Count Act reform bill that seems to be in the works. Some of the provisions are very predictable, addressing the worst attempted abuses of the procedures set out in the Electoral Count Act. One would clarify that the vice-president’s role in the counting of electoral votes is entirely administrative, without the discretionary powers Trump and his cronies unsuccessfully urged Mike Pence to assert on January 6, 2021. Another would raise the threshold number of congressional members needed to trigger a challenge to electoral votes as cast (now it’s just one senator and one House member), and still another would require a congressional supermajority — not just a simple majority — in both chambers to uphold a challenge.

What I find most interesting in Sargent’s account is that the fix might create ways to stop a state-generated election theft before it fully blossoms into flowers of insurrection. If a state legislature (or for that matter, a governor) tries to reject electors awarded according to the popular vote (as all 50 states currently require), Congress would not be forced to go along:

[T]he [draft] bill creates backstops. First, it seeks to create a procedure for judicial review when a state government fails to follow its own lawful, preexisting procedures in appointing electors (in all states, this process is tied to the popular vote).

Second, the bill directs Congress to count the electors validated by the court and not the phony ones appointed by a state legislature and/or governor in that situation.

So the reform would greatly strengthen the timetable set up by the Electoral Count Act wherein governors certify electors by a certain date, after which neither the states nor Congress can pull a fast one. As Ohio State University professor Ned Foley notes at Election Law Blog, such a reform would go a long way toward heading off mischief based on claims that state legislatures have the constitutional power to do whatever they want with electoral votes:

One key goal of a revised ECA, in my judgment, would be to make clear that if a state legislature attempted to send Congress a rival submission of electoral votes (in opposition to the electoral votes cast by electors appointed pursuant to the final count of popular-vote ballots) based on the state legislature’s claim to appoint electors directly after the popular-vote appointment has occurred, then Congress is constitutionally obligated to count the electoral votes based on the popular vote, and not the rival submission of electoral votes based on the too-late assertion by the state legislature of a power to appoint electors directly. Right now, the existing ECA is insufficiently clear on this point, and this ambiguity is especially dangerous.

The infamous Eastman Memo that guided Trump’s attempted election coup sought to declare the Electoral Count Act as unconstitutional because of the alleged lordly power of the legislatures. But holding the legislatures to procedures they have themselves enacted, and simply requiring consistent congressional recognition of them, would greatly weaken opportunities for the kind of coup it’s reasonable to think Trump is contemplating as at least a fallback option for 2024.

Let’s hope what Sargent is hearing is in fact what is happening, and that at least ten Republican senators can be recruited to avoid a constitutional crisis three years from now. There should be at least that many Republicans who believe that any Trump comeback must be via the old-fashioned method of winning the popular vote in states casting in aggregate 270 electoral votes.

A Plan to Fix the Electoral Count Act Is Taking Shape