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Op-ed

Could the new version of an 1887 act save our democracy? | GUEST COMMENTARY

In an age marked by politicians doxing their colleagues and threatening to shoot heretics in their own party, what piece of legislation has forced a detente across the aisle? The Electoral Count Act of 1887, a crucial reform that a group of bipartisan senators — led by Sens. Susan Collins (Maine Republican) and Joe Manchin (West Virginian Democrat) — just agreed to. These senators know our democracy is in peril, and this reform closes a gaping hole in our armor.

For instance, one path former President Donald Trump sought to remain in power past his expiration date was to pressure his vice president to simply seize power and declare Mr. Trump the winner. The public pressure he unleashed was so great that an informant disclosed that the Proud Boys “would have killed Mike Pence if given the chance” on Jan. 6th. The Electoral Count Reform Act explicitly rejects the notion that electoral outcomes hinge upon the whims of the vice president.

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Or take Arizona House Speaker Rusty Bowers and other officials who faced pushback and even armed protests at their homes, pressuring them to name fake electors who would hand electoral votes to a president not chosen by a state’s voters. The new law keeps these regular citizens and local politicians from being in the unenviable position of telling a future president of the United States “no.”

The old law allowed state legislatures significant leeway to simply declare a popular election “failed” and appoint their own slate of electors. That problem could magnify: The Supreme Court will decide next year on the independent state legislature theory, and four justices seem to agree with the theory that state legislatures can overrule voters and appoint their own electors. The new Electoral Count Act binds state legislatures to appoint electors based on the popular vote and eliminates ambiguity, as competing slates of electors are not possible.

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Right now, any legislator can delay certification. Objections by scores of legislators slowed certification for more than five hours in 2021, not counting the delay from the armed insurrection. Under this new law, objections would require signatures from one-fifth of each legislative body rather than giving any single legislator so much power.

Still, the new bill is not perfect, and some issues are serious enough to require action in reconciliation. In 2020 Trump pressured state legislators, next time, he could pressure governors, and this bill gives governors a decisive final say instead of allowing for multiple state checks and balances. It also provides for federal judicial review — but doing so denudes state courts of power and puts potentially scores of jump balls into the purview of a single Supreme Court.

We should not let perfect be the enemy of good. But we should recognize that ECA reform is not enough.

Societies rely on laws only when social norms give way. America hasn’t noticed the Electoral Count Act for the previous 150 years because the democratic transfer of power hadn’t been challenged. The need for Electoral Count Act reform exposes how much political norms have eroded. ECA reform is imperative; it is the last branch to grab before free fall.

An extremist president could find support from many members of Congress because extremism is a feature, not a bug, of our political system. Today, 90% of congressional seats are “safe,” meaning politicians fear losing only to hard-liners on their own side, a reality escalating extremism. Reforms such as open primaries, ranked choice voting and proportional representation would open up our primary system so that Republicans could vote against anti-democratic candidates and still vote for a Republican in — the general election — and vice versa.

The safety net of democratic assumptions that have kept our country functioning until now has too many holes. The Electoral Count Reform Act needs to pass. As Maryland Sen. Ben Cardin said on CNN last month: “We have Democrats and Republicans working together that recognize [the] Electoral Count Act particularly needs to be enacted immediately” — preferably before the November elections.

It also needs buttressing with other reforms, or this last branch will not be enough to break our fall.

Rachel Kleinfeld (RKleinfeld@ceip.org) is a senior fellow and Savannah Wallace (savannah.wallace@ceip.org) is a program coordinator of the Democracy, Conflict and Governance program at the Carnegie Endowment for International Peace.


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