Don’t let the Electoral Count Act rewrite go down for the count

Our democracy needs all the legislative help it can get

A bipartisan group of senators, led by Joe Manchin and Susan Collins, wants to overhaul the Electoral Count Act. The biggest problem is timing, Shapiro writes. (Tom Williams/CQ Roll Call file photo)
A bipartisan group of senators, led by Joe Manchin and Susan Collins, wants to overhaul the Electoral Count Act. The biggest problem is timing, Shapiro writes. (Tom Williams/CQ Roll Call file photo)
Posted July 26, 2022 at 6:00am

For congressional Democrats worried about November, nothing matters more than passing a Joe Manchin-approved health care (and maybe a bit more) bill through filibuster-proof reconciliation. The legislation, if it passes, might be called Build Back Less Later. 

For American democracy, though, nothing matters more than passing a long-overdue rewrite of an obscure piece of legislation called the Electoral Count Act of 1887. The legislation, if it passes, is unlikely to be featured in any 2022 campaign commercials in either party. 

The Electoral Count Act governs the tallying of electoral votes for president, which, as you might recall, was a subject of minor controversy in 2021. 

As the Jan. 6 committee has conclusively demonstrated, Donald Trump orchestrated a failed insurrection to delay or block the counting of the electoral votes that formally elected Joe Biden. 

But, if Fox News provides your prism on reality, you may instead believe that we are merely talking about a friendly self-guided Jan. 6 tour of the Capitol by patriots who grew a bit exuberant. 

Vaguely written, the Electoral Count Act adds more confusion than clarity to the final stages of a presidential election. The legislation was enacted so long ago that other major topics before the 49th Congress in early 1887 included the establishment of the nation’s first regulatory agency — the Interstate Commerce Commission — and the Edmunds-Tucker anti-polygamy bill, aimed at Mormons in Utah. 

In an ideal world, following America’s close brush with an illegally overturned election in 2021, modernizing the Electoral Count Act would have been a bipartisan priority. Instead, the topic languished on the back burner until last week when — in a stunningly retro moment — a bipartisan group of 16 senators introduced reform legislation. 

In fact, nine Republican senators signed onto the bill, which would be just one vote short of a filibuster-proof majority, assuming that all the Democrats go along. 

The updated legislation makes clear that the role of the vice president on Jan. 6 is merely to count the electoral votes — and nothing more, despite the outlandish theories of crackpot lawyers advising Trump. 

The bill would also eliminate such threats as a rogue state legislature asserting its power after the election by overturning the popular vote and appointing its own alternate set of bogus electors. 

Despite this refreshing burst of bipartisan sanity in Congress, the prospects for the legislation remain iffy at best. 

With Trump toady Kevin McCarthy poised to be the next House speaker after a likely Republican takeover, this is not an issue that can be kicked to the next Congress. Either the legislation passes this year or the 2024 election will be conducted under the same murky rules that Trump and his ragtag team of legal advisers tried so hard to exploit.  

The biggest problem is timing, especially in the Senate, since from here on floor time will be mostly given to legislation that the Democrats can politically exploit this fall. Traditionally, send-them-a-message floor votes take priority over good-government nostrums late in election years. 

Amy Klobuchar, who chairs the Senate Rules and Administration Committee, has hinted that she will hold August hearings. But that pace would make it hard for the bill to even get to the Senate floor before the ball comes down on New Year’s Eve. 

Another potential pitfall, particularly in the House, is that left-wing Democrats may balk at any electoral legislation that does not include new protections for voting rights. 

This is an appealing, high-minded stance, unless you care about counting votes in the Senate. The harsh, unfair reality is that no voting rights bill will survive a GOP filibuster in the Senate. Linking the Electoral Count Act with voting rights is, in effect, saying, “I don’t care about legislating, but I do love expressing moral outrage.”  

Then there is the perennial not-invented-here problem. 

Several times during their televised hearings, members of the Jan. 6 committee have mentioned that they are working on their own proposals to reform the Electoral Count Act. Klobuchar and other Democrats on the Rules Committee may have their own notions about legislative language. Taken together, these parallel efforts undoubtedly will complicate — and maybe jeopardize — the fragile bipartisan compromise. 

Another serious problem is the dissenting opinions from a few major Democratic lawyers specializing in election law.  

In a recent online essay, Marc Elias sniffed, “Lacking precision in critical areas, the bill feels less like the product of legislative compromise and more like something constructed in a law school faculty lounge.” What concerns Elias the most is the remote possibility that a governor might deliberately certify fraudulent election results even though the opposing party carried the state for president. 

Other leading legal theorists, such as Bob Bauer and Jack Goldsmith, take the opposite view. Writing over the weekend, Bauer and Goldsmith describe the new version of the Electoral Count Act “as an exceptionally promising development in our polarized era.” They also argue that many of the legal objections to the bill are exaggerated and, in some cases, represent a misreading of the proposed legislation. 

I am not here to adjudicate this dispute, since I received most of my legal training from watching "Perry Mason" reruns. But what I do know — with the countdown clock ticking loudly — is that the quest for legislative perfection means no legislation at all.

What we should have learned from Jan. 6 is that laws will not deter the lawless in their efforts to overturn American democracy. No rewrite of the Electoral Count Act will totally guard the nation against authoritarians with contempt for free elections. 

The hope is that passing the revised legislation this year will give the nation more protections against the dark forces of disorder than we had during the 2020 election cycle. In short, our battered and bleeding democracy needs all the legislative help it can get.

Walter Shapiro has covered the last 11 presidential campaigns. He is also a fellow at the Brennan Center for Justice at NYU and a lecturer in political science at Yale. Follow him on Twitter @MrWalterShapiro.