Lawmakers Want to Prevent Electoral Count Abuse. But Is Their Solution Even Worse?

Photo by Eric Lee / Bloomberg / AP

A group of Democratic senators led by Amy Klobuchar (D-MN), Angus King (I-ME), and Dick Durban (D-IL) have their eyes on fixing the Electoral Count Act. Their stated goal is to help ensure that what happened on January 6, 2021 doesn’t reoccur. Yesterday, they released a draft bill that hopes to plug some of the most glaring holes in the ECA, most notably by making it far tougher for Congress to overturn the outcome of the election and clarifying that the Vice President has nothing but a ceremonial role.

Former President Trump weighed in on the matter earlier this week, claiming that efforts to address the role of the Vice President prove somehow that Mike Pence had the right to have unilaterally “overturned the Election.” This of course is nonsense, as I discussed in my piece on Monday.

But the ECA reform efforts, sensible as they might seem on their own, are running into legitimate criticism from both civil rights activists and election scholars who warn, respectively, that the ECA reforms are no substitute for protections that must be passed in the wake of voter suppression laws sweeping the GOP-controlled states, and that increasing the power of elected state officials while diminishing the power of federal government to overturn elections could hand too much power to partisan actors.

To understand why this is, we should first review the problems that the ECA reform efforts seek to fix. From there, it’s easier to understand the critiques of progressive activists and legal scholars over why the proposed reforms don’t go far enough or might actually make things worse.

The Proposed Electoral Count Modernization Act

The Democratic authors of the draft bill released a one-page summary that lays out all the ways the Act would update the current Electoral Count Act, which they accurately described as “antiquated” with “vague and outdated rules” that “helped fuel false claims” about who could overturn the will of the voters, whether via the Vice President, Congress, or alternate slates of electors. The most important changes would be to require at least one-third of each chamber of Congress to force a vote (rather than just a single member of each chamber) and at least three-fifths of lawmakers to actually sustain an objection. This higher threshold would have prevented the political circus we saw on January 6 when only six GOP senators voted to challenge the election results, but that was still enough to force debate and a divisive vote on whether to sustain.

The proposed bill would also clarify that it is the governors of each state, not the legislatures, who must certify the state’s electors, with a fallback if a governor refuses to act. This would have prevented someone like former President Trump or his DoJ from going to the state legislatures seeking a vote to nullify the elections after the fact.

Criticism from Voting Rights Activists

The attention of key Democratic senators on reforms to the ECA comes after a disappointing failure by the senate majority to move actual voting rights legislation through due to the filibuster. Falling two votes short of the votes needed to amend the filibuster rule to exempt voting rights legislation, both the John Lewis Voting Rights Advancement Act (which importantly would restore preclearance requirements on any changes to voting laws or redistricting within jurisdictions with a history of voter suppression) and the Freedom to Vote Act (which would create federal standards for voting that would preempt many voter suppression laws) failed in that chamber. Critics see the ECA reform efforts as a way to paper over those losses by addressing only how votes are counted after elections are over—without enacting any meaningful protections for voters before elections occur.

The NAACP Legal Defense Fund, in concert with a host of other civil rights organizations, released a statement that was highly critical of this pivot toward ECA reform when voting rights themselves remain unaddressed:

“Bringing clarity to the certification of presidential elections is hollow, if the right to vote itself is not safeguarded. Pursuing this bill alone as a compromise on voting rights reform is offensive to voters, especially voters of color, and the generations who bled and died for the franchise since our nation’s founding….Congress must include the John Lewis Voting Rights Advancement Act and key provisions of the Freedom to Vote Act in any legislation that is considered to safeguard our democracy.”

It is highly unlikely, however, that any ECA reform bill that contains the John Lewis VRA or any provisions of the Freedom to Vote Act will get past the 60-vote threshold of the filibuster, given that the bills themselves could not achieve that level of support. Nor is it likely that Senators Manchin (D-WV) and Sinema (D-AZ) will change their position with respect to the filibuster rule in order to allow an ECA reform bill to pass when they would not do so for either of the voting rights bills standing alone.

The Democratic authors of the bill, recognizing that their efforts would prove controversial, released their own statement explaining their position. “We recognize that updating the Electoral Count Act is not a substitute for confronting the wider crises facing our democracy,” King, Klobuchar and Durbin said. “We continue to support legislation to protect voting rights prior to Election Day, and strongly believe that we must clarify ambiguities in the electoral process after Election Day to truly ensure the will of the voters will prevail.”

Democrats should be concerned, however, that to the average voter, especially those who are the targets of voter suppression laws, the end result will be frustrating and disheartening. Through this sidestep on voting rights, it will become clear that there will be no help from the federal government to ensure their right to vote is protected, even while Congress washes its hands of any ability or responsibility for the electoral count itself. Democratic enthusiasm for the national party and the upcoming election may suffer as a result, especially among minority voters.

Handing the Reins to the Governors and Local Election Authorities

Even assuming ECA reform is a necessary if distracting priority for lawmakers, the proposed solution might carry with it a hidden danger that makes the situation even worse without companion voter protections. As some commentators have observed, giving the final say over a state’s electoral slate to state elected officials assumes that they will act in good faith and not seek to undermine a legitimate election. 

A governor who “goes rogue,” however, and certifies a slate of electors that is contrary to the state’s popular vote would potentially wield enormous leverage in a closely contested national election. For example, former Georgia Senator David Perdue, who is a full-throated supporter of Donald Trump and his election conspiracies, is running against incumbent GOP Governor Brian Kemp. A future Governor Perdue might act in a purely partisan manner if given the opportunity to reject an election’s outcome based upon false claims of fraud. If the electoral count were close, his actions could have outsized national impact.

Moreover, focusing on the outcomes of the state elections as certified by their governors or their state elected officials ignores the very real threat now posed by Trump-aligned partisans. These candidates are intent on using the offices of secretary of state to put their thumbs on the election scales around the country. According to States United Action, a non-partisan group tracking races for secretaries of state nationwide, 21 candidates who dispute that Biden won the 2020 election are running for secretary of state in 18 states. More ominously, a right-wing group of secretaries of state candidates has organized under the slate “America First” and has targeted the office in three key battleground states of Michigan, Arizona, and Nevada. Should those candidates gain office, the entire electoral and certification process could be upended with chaotic consequences that would have no viable resolution in Congress under an updated ECA.

It might be a good time to recall that it was electoral chaos and fraud arising in three southern states and the state of Oregon in 1876, along with actual competing slates of electors sent on to Congress, that created paralysis during the electoral count that year. That led ultimately in a much-reviled “compromise” that resulted in the removal of federal troops from the South, an effective end to Reconstruction, and decades of white rule, racial terror, and Jim Crow voter suppression within the former Confederacy. In short, the history of leaving election oversight and results solely in the hands of the states is not a happy one in the U.S., and we would be wise to heed the lessons of that history in enacting any reforms today.