This nation owes a debt of gratitude to Congress for passing the Electoral Count Reform Act as part of the $1.7 trillion year-end funding bill in one of the last acts of the lame-duck session.
The process was relatively swift, by congressional standards. Introduced in July, the bill was drafted by a working group of bipartisan senators. By September, Senate Rules Committee Chairwoman Amy Klobuchar, D-Minn., who also advised the group, shepherded it through to a remarkable 14-1 vote.
Just before Christmas, the Senate passed the bill on a strong bipartisan vote. The House passed the bill the following day. President Joe Biden later signed it and the funding bill into law, thanking the electoral reform bill’s bipartisan authors, Sen. Susan Collins, R-Maine, and Sen. Joe Manchin, D-W.Va., along with Klobuchar and Sen. Roy Blunt, R-Mo., “for finding compromise to strengthen our democracy in the face of election denialism and assaults on our bedrock constitutional values.”
Why was Congress able to find compromise on this when bipartisanship has been so elusive on so many other issues? It could well be the level of perceived threat. Lawmakers who lived through the Jan. 6 insurrection, whether they openly acknowledge it or not, received a terrifying lesson in the fragility of democratic institutions that day.
That insurrection was rooted in the brazen attempts of then-President Donald Trump to cling to power at any price. His scheme failed that day, in part because his own vice president, Mike Pence, refused to go along with the notion that he alone could overturn an American election.
It is important to remember that the Electoral Count Act is not just a safeguard against the possible return of Trump. The reason it got bipartisan support is because smart legislators know that once a vulnerability in a law has been found, the likelihood of a recurrence increases — by a candidate of either party.
The sin of the original act was the vagueness of its language. Yet it too was an attempt to clarify the boundaries of the relationship between elections and elected officials. The Electoral Count Act of 1887 also resulted from claims of a stolen election, but it was Democrats alleging the steal. Locked in a tight battle in 1876, Republican Rutherford B. Hayes and Democrat Samuel Tilden both claimed victory in states with unclear results: South Carolina, Louisiana and, wouldn’t you know it, Florida.
According to the University of Virginia’s Miller Center, which specializes in presidential politics, Republican-controlled electoral returns boards in those three states claimed that fraud, intimidation and violence invalidated some votes. The boards threw out enough Democratic votes for Hayes to be declared the victor. It took a decade for Congress to agree on the language of the act, which may account for its vagueness.
This time, it took less than two years for Congress to recognize the loophole that allowed Trump to make the claim that Pence, in his capacity as president of the Senate, could change the results of the 2020 election.
Trump, true to form, complained over the weekend that “The Vice President did indeed have the power to send Electoral Votes back to State Legislatures for reapproval …. So why the new language? Because it was just another political Con Job.”
But we all know who’s pulling the con job here. Pence said earlier this year that not only was Trump flatly wrong, but also that “frankly, there is no idea more un-American than the notion that any one person could choose the American president.”
The new version of the Electoral Count Act makes clear that the role of vice president in administering the count is ceremonial. But the act goes further. It raises the threshold to challenge electoral votes during joint session, so that one or two members cannot hold the process hostage. It also makes clear that state legislatures cannot, after the fact, appoint electoral slates that would contravene the will of the voters. In addition, it requires that electoral votes received by Congress accurately reflect each state’s electoral results. That includes the right of candidates to go to court should a “rogue governor” attempt to send invalid electors.
These are all necessary clarifications and improvements over the original bill. It does much to safeguard future elections. More must be done, but this is a significant achievement for the protection of democratic institutions.
