Do it now
Americans retaining their faculties — and that cuts out many — do not want to see a replay of the 2020 effort by Donald Trump to reverse the results of a presidential election. Accountability for their actions remains under investigation for some and prosecution for others. Republican controlled states have since passed legislation and launched election campaigns aimed at enabling a replay in 2024.
Enter the Collins-Manchin Electoral Count Reform Act bill. The proposed legislation would fix many of the deficiencies in the 1887 Electoral Count Act that controls how Congress counts electoral votes. The process was a ceremonial afterthought until someone as amoral and criminally minded as Trump occupied the White House and lost reelection.
Real banana republic stuff
By election law expert Rick Hasen’s count, Donald Trump and his merry band of election thieves tried over half a dozen tactics for attacking weak spots in the Electoral Count Act in their attempt to turn Trump’s loss to Joe Biden into a win. They capped off those failed efforts by inciting a violent insurrection and considered “ordering the federal government seize voting machines, perhaps to order an illegal election do-over supervised by Trump cronies. Real banana republic stuff.”
The bill proposed to fix the Electoral Count Act’s deficiencies has its own, say critics, but Hasen argues the time to pass it is now, before the 2022 election and before Republican support for the bill fades (Slate):
The Collins-Manchin Electoral Count Reform Act bill would fix a lot of the ambiguities and contradictions in the act and do much more. It not only would confirm what we’ve already known—that a vice president has no unilateral power to accept or reject election results. It would also raise the threshold for senators or representatives to object to valid electoral college votes, eliminate the chance that a state legislature could rely on that “failed election” language to send in alternative slate of electors, and provide a mechanism for federal judicial review of any action by a rogue governor to send in a fake slate of electors. These are all positive developments. (Matthew Seligman offered more details here at Slate.)
Some Democrats, such as Democratic election lawyer Marc Elias, and good government reformer Norm Eisen, have expressed concerns about certain provisions of the proposed Electoral Count Reform Act, and whether they would provide new pathways for subversion or limit the potential for judicial review. But as Ned Foley, Matthew Seligman, Derek Muller, and Bob Bauer and Jack Goldsmith have shown, these concerns are based either upon misreadings of what the act actually does, or quibbles with some small amount of unclear language that could be improved upon as the measure makes its way through the legislative process.
Don’t let the perfect be the enemy of the good, Hasen argues. The clock is ticking.
Right now there are nine Republican senators who have co-sponsored the ECRA, just one short of the ten necessary to overcome a potential Senate filibuster, and Senate Minority Leader McConnell has indicated his general support for this kind of reform. It thus has a realistic chance of passing, so long as enough Democrats and Republicans are willing to go along. This opportunity is unlikely to last even if Democrats keep control of the Senate in the fall. Republican Sen. Rob Portman, for example, is a co-sponsor of the legislation and he is retiring from his Ohio seat at the end of his term. If he’s replaced by Trumpist candidate J.D. Vance, that will be one fewer senator on board for this urgent reform. And if Democrats lose the House, there’s no way that Kevin McCarthy, beholden to Trump for his support, would bring up such a measure.
The bill may not address all the clever ways Republicans might devise for suppressing the vote. It might not address threats against election workers. But one bill does not have to do everything that needs to be done. It’s important to pass the fixes that are passable before they are not. Yes, Hasen acknowledges, more needs to be done to secure elections from vote-counting and election-certifying funny business at the state level. And paper ballots everywhere, please. That’s not too much to ask “in this era of mistrust and chicanery.”
But legislators often suffer the same need product engineers have for their bills to do, well, everything they might. I and others have questioned our need to make everything “smart” (Smart Objects, the Internet of Things, etc.). Wired once asked, “Have you ever wished that your T-shirts could tell you the optimal water temperature for removing that pesky mustard stain?” Actually, no. No, I haven’t:
A single phrase characterizes the need product engineers feel to pack as much into an electronic product as technically feasible: “feature rich.” It is not enough to have a watch provide accurate time when it can do so much more. Yes, I can have a coffee maker that is also a timer, an alarm clock, satellite radio, and that starts and warms up my car on cold mornings. But all I really wanted was a cup of coffee.
So I’ll settle for a bill that thwarts Trumpists’ next attempt at exploiting the Electoral Count Act by paths we have identified. I’m not devious enough to anticipate every way in which they might undermine democracy in the future. Neither are honest elected officials. The Electoral Count Reform Act only has to do one thing decently. The clock is ticking.
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