Behold Congress’ lame duck session, their last chance to pass long-overdue measures to fix loopholes in federal election law that helped stoke the ill-conceived Jan. 6, 2021, “Stop the Steal” assault on the Capitol.
Fortunately, a refreshingly bipartisan coalition has been rising to update the Electoral Count Act of 1887, which governs how states certify their presidential elections and appoint electors to choose the president.
Nine Republicans joined Democrats to pass a House version of the bill in September and Senate Minority Leader Mitch McConnell backs the Senate version, as do many of his Republican colleagues.
The need should be obvious. As every grade student learns — or is supposed to learn, at least — voters in a presidential election actually vote for a slate of electors who have vowed to cast their ballots for that ticket in the Electoral College.
The chaos that followed the 2020 election demonstrated how the 1887 law is outdated, vague and sufficiently confusing to fuel false claims that the vice president or Congress could simply reject the will of the voters — or that state legislatures could override the popular vote by appointing their own electors after Election Day.
Last year lawyers and supporters of former President Donald Trump tried to use the 1887 law’s ambiguities to challenge the results of the 2020 election. The loopholes they tried to exploit included persuading Vice President Mike Pence to throw out votes of electors and recruiting slates of “fake electors” from states where Joe Biden had been declared the winner and the electoral slate had been certified in his favor.
The hazards won’t go away by themselves. Even now, a small number of holdout counties in Arizona and Pennsylvania are refusing to certify the results of the midterm election, opening them up to lawsuits and court orders forcing them to sign off on the vote count.
Although such misbegotten efforts to block certification are unlikely to prevent any election winners from taking office, they do show how small groups of people in the country’s decentralized election system can try to tie up the process.
They also show how the persistence of former President Trump’s unfounded conspiracy theories of widespread election fraud still have a tight grip on many of his allies and supporters.
Hastily written and passed in the politically turbulent Reconstruction Era, the 1877 law has long been criticized as vague, confusing, poorly written and ambiguous in ways that potentially endanger the democracy it was intended to protect.
The ECA was passed to set up a formal counting procedure for electoral votes after the 1876 presidential election, in which states submitted multiple slates of electors, causing a deadlock in electoral votes that left Congress unable to resolve the election for several weeks.
Two more close elections followed in 1880 and 1884, forcing Congress to pass legislation that put new procedures in place to resolve future election disputes.
Yet, despite some striking ambiguities that remained, the law remained untouched for 133 years.
Among other badly needed reforms, the new legislation would clarify and confirm that the vice president has no power to alter the electoral vote count, contrary to Trump’s insistence on Jan. 6, which Pence quite properly refused to follow.
The proposed bill also would raise the threshold for how many House and Senate members are needed to object to a slate of electors. Instead of just one person from each House, as currently is required, the proposed change would call for a judge to decide whether a state government can lawfully refuse to certify election results.
The proposed bill also would block state governments from changing rules after an election has been held.
The deadline for making a final determination on the appointment of electors would be moved back to Dec. 20 to give states more time to conduct recounts and resolve post-election disputes before electors are submitted to Congress.
Only the state’s governor would certify the names of the electors chosen in the state’s presidential election and the law provides for a fallback if the governor refuses to act.
The president pro tempore of the Senate, or the next most senior senator in the majority who is not a candidate for president or vice president, would preside over the joint session of Congress to receive and count the electoral votes.
The proposed law would clarify that the vice president has no role in the counting of electoral votes, except to open electoral vote ballots as required by the Constitution.
Other changes include narrowing the grounds for Congress to object to electors or electoral votes submitted by the states, raising the threshold for Congress to debate and vote on an objection from one member of each chamber to one-third of the members of each chamber, and raising the threshold to sustain an objection to a state’s electors or electoral votes to three-fifths of members chosen and sworn in.
The need for changes such as these has been a long time coming, but that political can has been too easily and repeatedly kicked down the road. The rise of closer elections in recent decades has made the need for change more apparent.
The next presidential election campaign cycle is almost upon us. Trump, for one, already has announced his intentions for another run, along with his baseless claims of widespread fraud in 2020, claims that he escalated last weekend with an extraordinary call for the “termination” of parts of the Constitution to overturn Biden’s election.
Congress needs to fix what obviously needs to be fixed to reassure public confidence in a fair, lawful and peaceful transfer of power.
