Thursday, July 21, 2022

A Promising New Electoral Count Act Reform Proposal

By Yuval Levin

Thursday, July 21, 2022

 

A couple of weeks ago, I noted around here that time was short for the effort to reform the Electoral Count Act, and that getting that effort moving would require a concrete proposal from the bipartisan group of senators that has been working on the issue for months. On Wednesday, that group produced just such a proposal, and it strikes me as constructive, balanced, and very promising.

 

The proposal takes the form of two bills. The first is sponsored by nine Republican senators (Susan Collins, Shelley Moore Capito, Lindsey Graham, Lisa Murkowski, Rob Portman, Mitt Romney, Ben Sasse, Thom Tillis, and Todd Young) and seven Democratic senators (Joe Manchin, Ben Cardin, Chris Coons, Chris Murphy, Jeanne Shaheen, Kyrsten Sinema, and Mark Warner) and is focused on the Electoral Count Act itself.

 

This bill clarifies that states must appoint presidential electors in accordance with the laws they each pass before election day and does away with the dangerously vague concept of a “failed election” in the original ECA. It requires that the governor of each state (or else another particular official specifically assigned this role by state law) be the person to certify the state’s slate of electors, to avoid the possibility of different officials sending different slates to Congress. It clarifies that the vice president’s role in counting electoral votes in Congress is purely ministerial and does not involve any sole decision-making authority. It raises the threshold for raising objections to a state’s electoral votes in Congress from one member of each house to one-fifth of the members of each house and narrows and clarifies the grounds for filing objections. And it allows for expedited federal judicial review of any challenges raised by a presidential candidate under already existing federal law to a state’s certification of its elections, but does not create any new right of action in federal court regarding state officials’ enforcement of state laws.

 

This is a very good set of reforms. The bulk of them are directed to avoiding a repeat of the sorts of problems we saw in 2020 — a situation in which the states all did their jobs but members of Congress, at the behest of the defeated incumbent president, moved to sow doubt about the outcome by capitalizing on the vagueness and looseness of the ECA. Because the bad actors in that case were in Congress, there is a fair amount of room for Congress to address the problems revealed in the process. Most of the provisions of the ECA function in effect as a set of House and Senate rules, and indeed are adopted as such by both houses every four years, and so revising them is well within the purview of the Congress.

 

Concerns about the potential for misbehavior in the states — driven by the fact that some people who insist the last election was stolen are now running for positions with authority over election administration in a number of states — are harder to address through federal law, and this proposed legislation accepts that reality. It would take some limited actions that are clearly within Congress’s power, like assigning the job of certifying electors to the governor in the absence of a clear state law assigning that power to someone else. This could help reduce the opportunities for misbehavior by state officials (unless, of course, the governor is the person who misbehaves), and could also make it easier for state and federal courts to quickly resolve uncertainties and disputes in the wake of an election.

 

Some Democrats wanted to go further, and give the federal courts more jurisdiction over the ways in which state officials enforce state election laws. This was a disastrously misguided idea, and it is very good that this proposal avoids any such path. This is a significant success for a number of Republicans who fought hard against that approach — particularly Ben Sasse and Mitt Romney. And it is the reason why I think this bill could get enough Republican votes to pass the Senate. The restraint shown in this proposal suggests this bipartisan group really wants to get these reforms enacted.

 

The second bill, sponsored by most of the same senators as the first (with the exception of Republican senators Capito, Young, Sasse, and Graham) takes up some issues beyond the scope of the Electoral Count Act. It would increase the penalties for threatening election officials, improve the postal service’s procedures for handling mail-in ballots where those are allowed under state law, reauthorize the Election Assistance Commission, and increase the penalties for tampering with election records. These are modest reforms directed to modest problems, and the result is a bill that doesn’t do anything particularly important. If it’s necessary to get more Democrats to accept the restrained approach to ECA reform in the first bill, then I see no problem with it, and certainly some of what it proposes is worthwhile.

 

While these proposed reforms have come from the sort of bipartisan “gang” that has produced legislation on infrastructure and guns in this Congress, they are not going to circumvent the committee system in the way that those earlier efforts did. Rather, they are going to be referred to the Senate Rules Committee, which has jurisdiction over the ECA. The committee will hold a hearing, and will see if it can vote this proposal out and get it considered on the floor. This is surely in part to show some respect for Senator Amy Klobuchar, who chairs the Rules Committee, and who had been working with other Democrats on a separate approach to ECA reform. That effort will hopefully be put aside now for the sake of this one — or at least we should hope that it is. Klobuchar’s more ambitious approach was never likely to gain much Republican support, and this new proposal makes it even less likely that it could. If she wants to see some meaningful reforms of the law in this Congress, she will almost certainly need to let her committee take up the Collins-Manchin approach, more or less as it stands.

 

As proposed, the bipartisan ECA-reform bill has nine Republican sponsors, and so one less Republican supporter than would be necessary to overcome a filibuster (if it has the support of all the Senate Democrats). I gather from Republican leadership staffers, however, that Mitch McConnell is positively disposed toward both bills, and that if they make it through committee without significant changes, they should be able to get the votes they need.

 

It remains to be seen if that’s true, and whether Democrats in both houses will be satisfied with an approach to election reform that does not nationalize election administration or create new paths to federal judicial intervention in state election-law enforcement. But this is a good proposal, with a real chance of becoming law, and that is very good to see.

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