America may be one election away from losing its democracy. Democracy’s fate seems to hinge on a little known act, the Electoral Count Act of 1887. Now is the time for Congress to bring the Electoral Count Act into this century. There are plenty of state bills across the country making it harder to vote in the United States. The Electoral Count Act deals with the vote count on the back end and sets the rules for whether those votes will actually be counted.
The 1887 act is a federal law establishing procedures to abide by constitutional provisions for the counting of electoral votes following a presidential election.
The 2020 election was the first in America’s history to not yield a peaceful transfer of power. That failure is rooted in two loopholes contained in the 1887 law — loopholes that must be closed before another presidential election occurs. First, the act enables state legislatures to ignore the popular vote and choose an alternative slate of electors in the case of an undefined failed election. It gives power to politicians, not voters, to decide when an election’s results must be disqualified or reworked. The dangers of handing such wide-ranging powers to politicians should now be obvious.
The 1887 act also decrees that if one representative and one senator object, in writing, to the counting of any state’s electoral votes, the bodies must adjourn to their chambers to debate the matter.
Americans saw for themselves the chaos that can ensue when as few as two politicians have the power to throw a wrench into the nation’s electoral gears. In the aftermath of the 2020 election, 147 Republican officeholders were willing to decertify the Electoral College count. Included in those 147 were six Missouri Republicans: Sen. Josh Hawley and Reps. Sam Graves, Vicky Hartzler, Billy Long, Blaine Luetkemeyer and Jason Smith.
This time, it was the Republican Party invoking the 1887 law to circumvent the actual vote count to effectively nullify Joe Biden’s election as president. The next time, it could be Democrats. Unless the Electoral Count Act is reformed, the blueprints are out there for any future administration and partisan supporters in Congress to sidestep the will of the people in order to retain power.
The Electoral Count Act should require at least a supermajority to decertify any state’s electoral votes. Right now, it only requires a simple majority. The law should also clarify what a failed election is and make it more difficult to substitute electors.
For the act to be reformed, it would only take 10 Republicans to join Democrats in the goal of protecting American democracy. If the two parties could find unity over a $1 trillion bill to upgrade America’s infrastructure, surely they can find a way to do the same with the nation’s crumbling electoral infrastructure.
