National Review Online
Tuesday, July 26, 2022
The American presidential-election
system is purposely decentralized: Popular votes are counted and electors are
awarded at the state level, and Congress then tallies the votes, with the vice
president presiding. Contests over which votes to count are handled by state
elections officials and state and federal courts. Congress reserves the power
to resolve serious disputes over who won a particular state, but has attempted
since the 1887 passage of the Electoral Count Act to provide clear rules of the
road so that such disputes are resolved well before they reach Congress.
This system held up under enormous stress
created by Donald Trump’s challenge in 2020. Its success in surviving that test
cautions against radical change. But 2020 revealed ambiguities and vulnerabilities
that could be reduced by prudent reform, in order to prevent a repeat of January 6. We have previously urged Republicans in Congress to support such reforms.
Now, a proposed bipartisan bill, the Electoral Count Reform Act, is on the table. With nine Senate
Republican co-sponsors and the support of key Democratic moderates, the ECRA
stands a serious chance of passage and has apparently sidelined a more
ambitious bill being developed by Senator Amy Klobuchar. The ECRA is not
perfect, and it could use some improvements
to its language, but it deserves Republican support.
First, the ECRA effectively
adopts James Baker’s mantra from 2000 as federal law: States cannot change the
rules after Election Day. Pursuant to Congress’s Article II power to “determine
the Time of chusing the Electors,” it provides that electors “shall be
appointed, in each State, on election day, in accordance with the laws of the
State enacted prior to election day.” This would explicitly bar state
legislatures from overriding an Election Day popular vote by meeting after
Election Day to appoint their own electors. It would also strengthen the case
against judges writing creative new rules after an election.
The Election Day rules also narrow the
circumstances in which states can declare that no candidate was chosen on
Election Day, limiting this to “extraordinary and catastrophic events” defined
by prior state law (such as the New York City mayoral primary scheduled for
September 11, 2001, when it was impossible to finish voting and a revote had to
be held).
Second, the ECRA tightens the
requirements for state governors to provide a single, conclusive certification
of state election results and provides expedited court proceedings to ensure
that litigation is concluded in time for the governor to meet the certification
deadline (an issue in Florida in 2000 and a source of some complaints in 2020).
This reduces the running room for other state officials to file competing
slates of electors with any patina of legitimacy.
Third, the ECRA clarifies the
stance properly taken by Mike Pence in January 2021: The vice president’s role
in presiding over the joint session and counting the electoral votes is
“limited to performing solely ministerial duties,” with “no power to determine,
accept, reject, or otherwise adjudicate or resolve disputes” over the electors.
The framers of the Twelfth Amendment, adopted when Aaron Burr was vice
president, never meant to lodge sweeping power in the sole hands of the vice
president. Kamala Harris should breathe easy that this would prevent her from
facing the same trial in 2025 as Pence, and the rest of the country should be
relieved that she will not be tempted to exercise any such power.
Fourth, the ECRA requires a fifth of each
house of Congress — currently 87 members of the House and 20 senators — to
consent before a vote may be held on a challenge to electors. That threshold
would have prevented challenges in 2005 and 2021 from coming to a vote. Current
law allows just a single member of each chamber before an objection is heard.
The ECRA does not raise the threshold for throwing out a
state’s certified electors beyond a simple majority of both houses, because of
concerns over whether Congress could legally bind a future Congress that was
determined to do so by majority vote.
The ECRA states that “the only grounds for
objections” are that electors were not lawfully certified, or that “the vote of
one or more electors has not been regularly given.” In light of the mischief
created by efforts to read the phrase “regularly given” to include any
challenge to the regularity of the underlying election, we would prefer to see
a definition of this term made explicit, but the new language at least does no
further harm.
Finally, the ECRA includes a separate
section to clarify the presidential transition process following a disputed
election. There are also companion bills pending to expedite the delivery of
mailed ballots and strengthen criminal penalties for voter intimidation or
altering or destroying election records. These are more modest and less urgent
proposals, but they, too, deserve support.
The political reality is that there
is just a narrow window in which to get this done. Enacting
electoral-count reform will only get more difficult as the next presidential
election approaches. Democrats, including President Biden, have dragged
their feet on ECA reform until they could convince their voting base that
no broader voting or elections bills had the votes to pass. House Republicans
have been less receptive to reform, so the chances of bipartisan legislation
may dim in 2023. Nor should the Senate wait for a lame-duck session, when
there might be disputes ongoing as to the outcomes of some midterm
races. Avoiding serious election disputes, and promoting confidence in
their swift and sure resolution, should not be a partisan issue. The time to
fix the gaps in the roof is now, before the rains come again.
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