Like many scholars of democracy, I have strongly supported both the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Both are necessary (though not sufficient) to secure the most precious rights in any democracy — the right to vote and the right to have one’s vote counted fairly and accurately.
Most supporters of these bills believed the urgent need for them justified lifting the Senate filibuster and passing them on a purely partisan vote. But with the refusal of Democratic Sens. Joe Manchin and Kyrsten Sinema (or any Republican senators) to vote to suspend the filibuster, it’s clear that these bills will not pass this Congress.
The only remaining option is to pare back the reform cause to a much narrower agenda that can command bipartisan support. Democrats must recognize that politics is the art of the possible, and democratic responsibility demands that we not sacrifice what is valuable and possible on the altar of the unattainable. That means supporting the bipartisan efforts to reform the Electoral Count Act.
This work is now taking shape in bipartisan negotiations among moderate senators convened by Susan Collins, Republican of Maine. The new bill would fix some of the most dangerous vulnerabilities in the 1887 Electoral Count Act — some of which we saw in the 2020 election — that could enable a future Congress (or a rogue vice president) to reverse the vote of the Electoral College in certain states or to plunge the process of counting electoral votes into such chaos that there would be no way of determining a legitimate winner. Such a deadlock could precipitate a far larger and more violent assault on the democratic order than what we saw on Jan. 6. Reducing the risk of such a calamity is a democratic imperative.
Collins’ group is reportedly considering making it much more difficult for Congress to question properly certified state election results, clearly specifying that the vice president’s role in counting the electoral votes is limited, protecting election officials from harassment and intimidation while they are carrying out their lawful functions and granting states new funding to improve their voting systems.
As the N.Y.U. election law expert Richard Pildes has written, federal election laws from the 19th century (the Presidential Election Day Act and the Electoral College Act) contain provisions that could offer troubling opportunities for disruption and abuse during a postelection struggle over the presidential vote. The potential for a state legislature to declare a “failed election” and appoint its own slate of electors must be closed through a reformed law. The danger that postelection litigation could carry on beyond the meeting of the Electoral College can also be addressed by extending the safe harbor date for reporting a state’s electoral votes from early December until later that month and then postponing the formal Electoral College vote from December until early January (shortly before the Congress convenes to count the electoral votes on Jan. 6).
Pildes and three other leading electoral law experts from diverse ideological backgrounds recently proposed a reform of the Electoral College Act that would prevent Congress from questioning a state’s electoral votes once the state certified them “through policies established in advance of the election.” If state authorities could not agree on who won their electoral votes, the reformed law should establish a mechanism like a nonpartisan tribunal to resolve the dispute. (In addition, before the safe harbor deadline, there would still be the option of challenging in the courts any state legislative effort to circumvent rules and steal an election.) Angus King, an independent senator from Maine, has also been leading efforts to reform the Electoral Count Act; one focus is to establish a procedure for judicial review of state results if a state failed to follow the procedures it had previously prescribed for choosing its electors. This reform would at least remove one pathway to reversing a state’s legitimate presidential election result.
SO FAR, the Republican leaders of the Senate and House, Mitch McConnell and Kevin McCarthy, have expressed openness to Electoral Count Act reform. Beyond such a reform bill, Republican senators such as Mitt Romney have also signaled an openness to considering some reforms on voting rights.
We can’t know what might be possible through bipartisan negotiations, but we do know that the Democrats’ two voting rights bills have not gotten passed this year.
We must embrace the reform we can achieve — and continue the fight for the important reform work of the future.
About the author: Diamond is a senior fellow at the Hoover Institution and a senior fellow in global democracy at the Freeman Spogli Institute for International Studies at Stanford.
