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Senators Look to Fix 1887 Electoral Act Putting U.S. Democracy at Risk
A bipartisan group of lawmakers wants to fix the Electoral Count Act, the obscure law used to justify the Jan. 6 riot. Is it even possible?The Electoral Count Act is both a legal monstrosity and a fascinating puzzle.Intended to settle disputes about how America chooses its presidents, the 135-year-old law has arguably done the opposite. Last year, its poorly written and ambiguous text tempted Donald Trump into trying to overturn Joe Biden’s victory, using a fringe legal theory that his own vice president rejected.Scholars say the law remains a ticking time bomb. And with Trump on their minds, members of Congress in both parties now agree that fixing it before the 2024 election is a matter of national urgency.“If people don’t trust elections as a fair way to transition power, then what are you left with?” said Senator Angus King, an independent from Maine who has been leading the reform efforts. “I would argue that Jan. 6 is a harbinger.”‘Unsavory’ originsThe Electoral Count Act’s origins are, as King put it, “unsavory.”More than a decade elapsed between the disputed election that inspired it and its passage in 1887. Under the bargain that ended that dispute, the Republican candidate, Rutherford B. Hayes, agreed to withdraw federal troops from the occupied South — effectively ending Reconstruction and launching the Jim Crow era.The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 — which lays out what is meant to happen when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.Amy Lynn Hess, the author of a grammatical textbook on diagraming sentences, told us that mapping out that one sentence alone would take about six hours and require a large piece of paper.“It’s one of the most confusing pieces of legislation I’ve ever read,” King told us. “It’s impossible to figure out exactly what they intended.”King has been working through how to fix the Electoral Count Act since the spring, when he first started sounding the alarm about its deficiencies. His office has become a hub of expertise on the subject.“It just so happens I have a political science Ph.D. on my staff,” King said. “And when I assigned him to start working on this, it was like heaven for him.”Last week, King and two Democratic colleagues, Senators Amy Klobuchar of Minnesota and Dick Durbin of Illinois, introduced a draft discussion bill aimed at addressing the act’s main weaknesses.King said he hopes it will serve as “a head start” for more than a dozen senators in both parties who have been meeting to hash out legislation of their own.One leader of that effort, Senator Joe Manchin III of West Virginia, a Democrat, vowed on Sunday that a reform bill “absolutely” will pass. Senator Lisa Murkowski, a Republican of Alaska, said the lawmakers were taking “the Goldilocks approach” — as in, “we’re going to try to find what’s just right.”But finding a compromise that will satisfy both progressive Democrats and the 10 Republican senators required for passage in the Senate won’t be easy. Already, differences have emerged over what role the federal courts should play in adjudicating election disputes within states, according to people close to the talks.Mr. Worst-Case ScenarioFew have studied the Electoral Count Act more obsessively than Matthew Seligman, a fellow at Yale Law School.In an exhaustive 100-page paper, he walked through nearly every combination of scenarios for how the law could be abused by partisans bent on stretching its boundaries to the max. And what he discovered shocked him.“Its underexplored weaknesses are so profound that they could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball,” Seligman warns.He found, for instance, that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the results of the presidential election and the party that won legitimately would have been powerless to stop it.”Seligman refrained from publishing his paper for more than five years, out of fear that it could be used for malicious ends. He worries especially about what he calls the “governor’s tiebreaker,” a loophole in the existing law that, if abused, could cause a constitutional crisis.Suppose that on Jan. 6, 2025 — the next time the Electoral Count Act will come into play — Republicans control the House of Representatives and the governorship of Georgia.Seligman conjures a hypothetical yet plausible scenario: The secretary of state declares that President Biden won the popular vote in the state. But Gov. David Perdue, who has said he believes the 2020 election was stolen, declares there was “fraud” and submits a slate of Trump electors to Congress instead. Then the House, led by Speaker Kevin McCarthy, certifies Trump as the winner.Even if Democrats controlled the Senate and rejected Perdue’s electoral slate, it wouldn’t matter, Seligman said. Because of the quirks of the Electoral Count Act, Georgia’s 16 Electoral College votes would go for Trump.“When you’re in this era of pervasive distrust, you start running through all these rabbit holes,” said Richard H. Pildes, a professor at New York University’s School of Law. “We haven’t had to chase down so many rabbit holes before.”Now, for the hard partThe easiest part in fixing the Electoral Count Act, according to half a dozen experts who have studied the issue, would be figuring out how Congress would accept the results from the states.There’s wide agreement on three points to do that:Extending the safe harbor deadline, the date by which all challenges to a state’s election results must be completed.Clarifying that the role of the vice president on Jan. 6 is purely “ministerial,” meaning the vice president merely opens the envelopes and has no power to reject electors.Raising the number of members of Congress needed to object to a state’s electors; currently, one lawmaker from each chamber is enough to do so.The harder part is figuring out how to clarify the process for how states choose their electors in the first place. And that’s where things get tricky.The states that decide presidential elections are often closely divided. Maybe one party controls the legislature while another holds the governor’s mansion or the secretary of state’s office. And while each state has its own rules for working through any election disputes, it’s not always clear what is supposed to happen.In Michigan, for instance, a canvassing board made up of an equal number of Republicans and Democrats certifies the state’s election results. What if they can’t reach a decision? That nearly happened in 2020, until one Republican member broke with his party and declared Biden the winner.Progressive Democrats will want more aggressive provisions to prevent attempts in Republican-led states to subvert the results. Republicans will fear a slippery slope and try to keep the bill as narrow as possible.King’s solution was to clarify the process for the federal courts to referee disputes between, say, a governor and a secretary of state, and to require states to hash out their internal disagreements by the federal “safe harbor date,” which he would push back to Dec. 20 instead of its current date of Dec. 8.The political obstacles are formidable, too. Still reeling from their failure to pass federal voting rights legislation, many Democrats are suspicious of Republicans’ motives. It’s entirely possible that Democrats will decide that it’s better to do nothing, because passing a bipartisan bill to fix the Electoral Count Act would allow Mitch McConnell, the Republican Senate minority leader, to portray himself as the savior of American democracy.Representative Zoe Lofgren, a California Democrat who heads the Committee on House Administration, has been working with Representative Liz Cheney, the Wyoming Republican, on a bipartisan House bill. But she stressed that their ambitions are fairly limited.“We’ve made clear this is no substitute for the voting rights bill,” Lofgren told us. “The fact that the Senate failed on that shouldn’t be an excuse for not doing something modest.”What to read tonightJill Biden, the first lady, told community college leaders that her effort to provide two years of free community college isn’t in Democrats’ social spending bill, Katie Rogers reports.Republican campaigns have intensified their attacks on Dr. Anthony S. Fauci, a trend that Sheryl Gay Stolberg described as representative of “the deep schism in the country, mistrust in government and a brewing populist resentment of the elites, all made worse by the pandemic.”Peter Thiel is stepping down from the board of Meta, according to its parent company, Facebook. Ryan Mac and Mike Isaac hear that Thiel, who has become one of the Republican Party’s largest donors, wants to focus his energy on the midterms instead.Chief Justice John G. Roberts joined the three liberal members’ dissent to a Supreme Court order reinstating an Alabama congressional map. A lower court had ruled that the map violated the Voting Rights Act, Adam Liptak reports.STATESIDEBallots being tabulated at the Maricopa County Recorder’s office in Phoenix on Nov. 5, 2020.Adriana Zehbrauskas for The New York TimesVoting rights push goes localArizona, as we’ve noted, has become a hotly contested battleground, and the two parties have clashed continuously over the rules that govern how elections can and should be held. Just last week, the Republican speaker of the State House spiked a bill that would have allowed the Legislature to reject election results it didn’t like.A new ballot initiative led by Arizonans for Fair Elections, a nonprofit advocacy group, would do the opposite: expand voter registration, extend in-person early voting and guard against partisan purges of the voter rolls, along with a host of other changes that groups on the left have long wanted.It would essentially overturn an existing law that was litigated all the way to the Supreme Court last year, resulting in a 6-3 decision favoring the Republican attorney general. Arizonans for Fair Elections expects to announce its plans on Tuesday.The move comes at a time of frustration for voting rights advocates, whose push for legislation to enact similar changes at the federal level ran into a wall of Republican opposition.Will the local approach fare any better? A citizens’ initiative that passed in 2000 established Arizona’s independent redistricting commission, so there’s a precedent. To get on the ballot this year, the group needs to obtain 237,645 valid signatures by July 7.“Our Legislature for many years has been trying to chip away at the right to vote,” said Joel Edman, a spokesman for the initiative. “We’re at a big moment for our democracy.”Is there anything you think we’re missing? Anything you want to see more of? We’d love to hear from you. Email us at onpolitics@nytimes.com. More
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Jan. 6 Was a Warning. Will Lawmakers Do Anything to Protect the 2024 Election?
The transfer of political power is perhaps the most delicate moment in the life of a democracy. It follows an election which the party in power lost and its opponents won. Inevitably, feelings are raw, tempers are short, and mistrust can run high … all as control of the nation is changing hands.Because politics is how a self-governing society resolves its differences peacefully, it is essential that the rules of this transfer are as clear as they can be. If they are not, they can be exploited to create confusion and discord. In the extreme, as the world saw on Jan. 6, 2021, ambiguity on the page opens the door to bloodshed in the streets — exactly what the rules aim to avoid.This is why Republicans and Democrats in Congress are right to train their sights on fixing, at long last, the 135-year-old federal law that sets out the process for tabulating the electoral votes that decide who becomes president, known as the Electoral Count Act.Legal experts have been raising the alarm over the act for years. Its most consequential provision, dealing with Congress’s counting of electoral votes, is “a virtually impenetrable maze,” one scholar wrote in 2019. This was the provision that President Donald Trump, assisted by a posse of partisan lawyers, zeroed in on to encourage arguably unconstitutional behavior by Vice President Mike Pence and members of Congress, potentially criminal behavior by Rudy Giuliani and his dozens of fake electors, and obviously criminal behavior by hundreds of rioters who laid siege to the Capitol.It doesn’t matter whether any of these people actually believed the wild claims about how the Electoral Count Act works, if they had heard of it at all. The law’s confounding language created the space for a seductive narrative about a stolen election, and a legal path to take it back.More than a year later, Mr. Trump continues to lie about the law, revealing in the process his utter contempt for the most basic democratic principles. “Mike Pence did have the right to change the outcome, and they now want to take that right away,” Mr. Trump said late last month in a statement opposing E.C.A. reform. “Unfortunately, he didn’t exercise that power — he could have overturned the election!”No, he could not. Mr. Pence acknowledged as much on Friday. “I had no right to overturn the election,” he said. Yet that much should have been crystal-clear even before 2020. Since it wasn’t, and since Mr. Trump shows every indication of planning to run again in 2024, it is imperative that Congress clarifies the law now — before anyone casts a ballot in that election, and before knowing which party will be in charge of the Senate or the House of Representatives. It’s not hyperbole to say that American democracy is at stake.To understand the mess of the Electoral Count Act requires a brief history lesson. The law arose out of one of the most controversial elections in American history, the 1876 presidential race, a nail-biter with disputes over electoral votes in several states, leading to an ad hoc congressional commission that haggled for months and did not settle on a clear winner until days before the inauguration. Rutherford B. Hayes, who in the end was awarded the presidency over the Democrat, Samuel Tilden, wrote that “radical change” was needed immediately to prevent a similar battle from tearing the nation apart. Still a decade went by before Congress took action, and the law it ultimately passed confused more than it clarified.Today, three reforms matter above all: clearly defining the role and powers of the vice president, of Congress and of the states in electing the president. All three are central to achieving the fundamental goal, which is to ensure that voters, and not partisan political officials, get to choose their leader.Let’s take each of the players in turn.First, the vice president. Contrary to the self-serving fantasies of Mr. Trump and the lawyers who schemed with him, like John Eastman, the vice president’s role on Jan. 6 is a straightforward one. Starting at 1 p.m., the job is to open the envelopes and announce the electoral-vote counts from each state, in alphabetical order, then call for any objections. That’s it.She or he has no authority to unilaterally reject electors from the states. The law already lays out this process, but its outdated language is vague and should be clarified in a way that leaves no room for mischief.Next, Congress. The national legislature has many responsibilities, but sitting as a presidential-recount board is not one of them. Whenever a state submits a single, uncontested slate of electors, as all 50 states did in 2020, Congress’s job is to accept it. The problem is that the Electoral Count Act makes it easy to throw a wrench in the works by allowing objections to a state’s submission if only a single senator and a single representative sign on. This sets off hours of debate and delay — a recipe for chaos, as Senators Ted Cruz and Josh Hawley demonstrated with their grandstanding around baseless allegations about voting irregularities that had been rejected by every court to consider them.To avoid a repeat of this shameful and reckless behavior, Congress should raise the bar significantly — by requiring the assent of one-quarter or even one-third of both houses to lodge an objection, and a supermajority to sustain one. It should also strictly limit the grounds for raising an objection in the first place.What if a state submits two conflicting slates of electors? And what if the two houses of Congress disagree over which slate is valid? That’s a different sort of problem, and while it didn’t happen in 2020, it did in 1876 and could cause a major crisis again in 2024 — if, say, a Trump-aligned governor who believes that election was stolen refuses to certify a valid popular-vote count that favors the Democratic nominee, and instead authorizes his state’s Republican electors to cast their ballots for Mr. Trump. (Think that sounds crazy? Then you haven’t been listening to David Perdue, the former senator running for governor of Georgia.) In such a scenario, the Electoral Count Act needs to make it clear that Congress should accept the electors who were chosen in accordance with state law.This is where the courts, and especially the federal courts, play an essential role. The law should leave no doubt that judges — and not political actors — have the last word in resolving any vote-counting disputes that arise between Election Day and mid-December, when electors meet in state capitals to cast their ballots.Last, but far from least, are the states themselves. Under the Constitution, state legislatures have the authority to appoint their electors however they choose. They can let the voters do it, as all 50 states do today, or they can do it themselves, as many states did in the early years of the Republic. The key point is, there are no backsies. Once a legislature has settled on a method, it may not change its mind because it’s not happy with the results on Election Day. If a state uses the popular vote to appoint electors, it is required to count those votes fairly and accurately, and to appoint electors in line with the outcome. As the speaker of the Arizona House of Representatives said last week in rejecting a bill that would have given the legislature the power to overturn the popular vote, “We gave the authority to the people. And I’m not going to go back and kick them in the teeth.’’Yet there is a glaring loophole in the federal law: If a state fails to make a choice by its prescribed method on Election Day, the legislature may step in and do as it pleases. This provision, even older than the Electoral Count Act, was written to address a narrow set of scenarios specific to the mid-19th century. Today it only invites abuse, as state legislatures can try to spin any outcome they don’t like as a “failed” election.Congress needs to limit this provision to real “failures” — a major natural disaster, terrorist attack or some other catastrophe, and even then only if it is impossible to arrange for a popular election afterward.Electoral Count Act reform is not the voting issue Democrats were hoping to push through Congress. They are rightly furious with Senators Joe Manchin and Kyrsten Sinema, along with every Senate Republican, for thwarting two badly needed bills that would have attacked many forms of voter suppression and partisan gerrymandering. Still, the current push to reform the act, whose proponents include Senators Angus King, Amy Klobuchar, Susan Collins and Mitt Romney, is worth the effort — not only because it will help protect the integrity of the presidential election, but because it may well be the only reform with enough bipartisan support to pass in this polarized moment.If its essential components do pass, Democrats can take comfort in knowing that politicians and lawmakers will have a much harder time undermining a valid vote. Republicans, who like to talk about the importance of states’ rights in our federalist system, can be reassured that Congress will stay in its lane and leave the power to appoint electors with the states, where it belongs.None of this would be an issue, of course, if the United States simply counted up all the votes and saw who won. In 2020, over seven million more Americans chose Joe Biden than chose Mr. Trump, a resounding victory that would have been impervious to all the legally dubious shenanigans Mr. Trump and his allies tried to pull. Even in the closest election of the last half century, in 2000, the national popular-vote margin was more than half a million — far more than the margins of victory in all the disputed states of 2000 and 2020 combined.But as long as we have the Electoral College, the process needs to be as clear and as foolproof as possible. Making it so will not guarantee that things run perfectly. After all, a political movement that is categorically unwilling to accept electoral defeat can do a lot of damage. But just because we can’t plan for everything is not an excuse to do nothing. When you make the perfect the enemy of the good, you get neither.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
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You Think This Is Chaos? The Election of 1876 Was Worse.
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