Last week, a bipartisan group of 16 U.S. senators agreed on a long-awaited proposal to fix the Electoral Count Act, the ramshackle 1887 law that then-President Trump used to try to overturn the 2020 election.
Trump claimed the law, which sets the rules under which Congress counts electoral votes, allowed then-Vice President Mike Pence to block votes from states that Joe Biden won. Pence refused, which is why the mob that stormed the Capitol on Jan. 6, 2021, chanted “Hang Mike Pence.”
Trump also argued that the law empowers state legislatures to set aside the popular vote at will. He lobbied GOP leaders in swing states to appoint rogue slates of Trump electors, but none played along.
Most legal scholars said Trump misinterpreted the law, but that didn’t stop the former president from nearly touching off a constitutional crisis, if not a coup d’etat.
After Jan. 6, there was broad bipartisan consensus in Congress that the law should be revamped before 2024 to prevent Trump or other candidates from trying those gambits again.
The bipartisan Senate proposal fixes the most glaring flaws in the old statute. It specifies that states must appoint presidential electors based on the laws in place on election day — no changing the rules after the game. It requires each state to designate one official (most often the governor) to certify a single legitimate slate of electors — no rogue slates. It allows presidential candidates to challenge any state’s electoral slate in federal court under a fast-track process.
And it sets down in writing what Pence and nearly everyone already believed: The vice president has no power to reject any state’s electoral votes.
You might have expected a common-sense proposal like that to win broad and immediate support beyond the nine Republicans (led by Sen. Susan Collins of Maine) and six Democrats (led by Sen. Joe Manchin III of West Virginia) who negotiated it.
No such luck. In today’s polarized Washington, no outcome is guaranteed — even on a measure to protect the next presidential election from another coup attempt.
On the left, progressive Democrats don’t want to admit that their yearlong effort to pass broader voting rights legislation is dead, and that fixing the Electoral Count Act might be the best they can do. Some bristle at backing a bill written by Collins and Manchin, two of the left’s least-loved senators.
On the right, many Republicans — especially those who face primary elections this year — fear drawing Trump’s wrath if they endorse a bill aimed so squarely at his groundless campaign to delegitimize the 2020 election. The former president denounced the 16 senators last week as “Democrats and RINOs” (Republicans in Name Only).
So it’s already clear that this bill, worthy though it is, will have to wait until after the midterm elections for action.
There are substantive arguments over the bill’s details too. Most involve a long-standing difference between the two parties: In general, Democrats want clearer, detailed rules to govern what states can do, while Republicans want to preserve state autonomy.
For example, the proposed bill says a state may delay an election only in case of “extraordinary and catastrophic” events; some Democrats have said they want that provision to be more specific.
The bill replaces the old rule under which a single member of the House and a single member of the Senate can object to a state’s electors; instead, it would require 20% of each body to raise a challenge. Some Republicans would like to lower that threshold; some Democrats want to raise it and limit the grounds for objections.
Those are all legitimate grounds for debate — and debated they will be. Sen. Amy Klobuchar (D-Minn.), chair of the Senate Rules Committee, has announced that her panel will hold hearings on the legislation soon. Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-San Jose) are working on their own proposal on behalf of the House Jan. 6 committee — provenance that is almost guaranteed to draw Trump’s ire.
In the Senate, any bill will need at least 60 votes to overcome a filibuster, meaning at least 10 Republicans must support it if all 50 members of the Democratic caucus go along. In the House, the bill’s supporters expect pro-Trump Republicans and at least some progressive Democrats to vote against it.
But the argument for compromise is strengthened by the pressure of a deadline. A new, improved Electoral Count Act is not a theoretical insurance policy against a once-in-a-century event. It’s more like fire insurance in a neighborhood where an arsonist has set blazes and is threatening to strike again.
Congress needs to pass some version of this bill by the end of the year; the job will only get harder once the 2024 presidential campaign gets underway. And if the House of Representatives comes under the control of pro-Trump Republicans in November, the bill might simply die. This is no time to let the best be the enemy of the good.
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