Electoral Count Act reform is a pretty big deal

A bipartisan bill in the Senate, if passed, would solidify the wobbly system for formally electing a president

The announcement yesterday that a bipartisan group of nine Republican and seven Democratic senators have reached agreement on reforming the outdated, poorly drafted Electoral Count Act of 1887 is good news on the democracy protection front and bad news for those wishing to make mischief in the aftermath of the next presidential election.

This effort was originated by a committed group of democracy scholars who watched with horror as Trump and his co-conspirators advanced radical theories of how the Electoral College system could be abused to keep Trump in power and otherwise distort the traditional and, until 2020, uncontroversial process of counting presidential electors. While these theories had no legal foundation, the motivating concern was that flaws in the Electoral Count Act had sufficient ambiguity to enable partisan majorities in the Congress to alter the results of an election by objecting to the certified election results in specific states. Problems in the Electoral Count Act also leave open the possibility of competing slates of electors being submitted by the states, leaving Congress to chose between which will be officially counted.

The bipartisan proposal will raise the threshold for objections to electors to be considered to 20% of each House (currently, one House member plus one Senator is enough). It removes the dangerous concept of Congress being able to declare a “failed election” in a state. And it clearly provides that the certification of electors must be undertaken by the official given this authority by state law (usually the governor) prior to the election - eliminating the possibility of a state submitting two (plausibly legally valid) slates of electors to the Congress for counting.

With virtually all Democrats in support of this reform, nine Republicans co-sponsors, and minority leader Mitch McConnell suggesting he is favorably disposed to the effort, prospects for the bill passing the Senate are good. But of course it is also very possible to the bill to get de-railed, like many bipartisan efforts, by external events.

Electoral Count Act reform could also be stymied by House Democrats who are irate that Senate Republicans have blocked more ambitious voting rights protections. While I sympathize with these frustrations, especially the filibuster of the slimmed down, bipartisan voting rights legislation the Electoral Count Act has to be fixed before the next presidential election. Practically speaking - that means before we have a new Congress in January. With many “stop the steal” candidates possibly getting elected in 2022 as state and local election officials - or even as governor of a key swing state - it would be irresponsible and dangerous to enter into the 2024 election with an unreformed, creaky Electoral Count Act.