Last week, a bipartisan group of 16 US senators agreed to long awaited offer to fix the Election Count Act, a decrepit 1887 law that then-President Trump used to try to cancel the 2020 election.
Trump said the law, which sets the rules for Congress to count electoral votes, allows then-Vice President Mike Pence to block votes in states that Joe Biden won. Pence refused, which is why the crowd that stormed the Capitol on January 2. On November 6, 2021, chanted “Hang Mike Pence.”
Trump also argued that the law empowers state legislatures to overrule the popular vote at will. He lobbied GOP leaders in swing states to nominate fraudulent Trump electoral slates, but no one played along.
Most legal scholars have said Trump misinterpreted the law, but that hasn’t stopped the former president from nearly sparking a constitutional crisis, if not a coup d’état.
After Jan. 6, was wide bipartisan consensus in Congress that the law must be revised before 2024 to prevent Trump or other candidates from trying these gambits again.
The Senate’s bipartisan proposal corrects the old statute’s most egregious flaws. It specifies that states must nominate presidential electors based on the laws in effect on Election Day, without changing the rules after the game. It requires each state to appoint one official (most often the governor) to certify a single legal electoral roll—no fraudulent rolls. This allows presidential candidates to challenge any state’s election results in federal court under an expedited process.
And it spells out what Pence and almost everyone already believed: the vice president has no right to overrule the electoral votes of any state.
Such a sensible proposal would have been expected to receive widespread and immediate support beyond the nine Republicans (led by Senator Susan Collins of Maine) and six Democrats (led by Senator Joe Manchin III of West Virginia) who negotiated.
There is no such luck. In today’s polarized Washington, no outcome is guaranteed—not even in measures to protect the next presidential election from a new coup attempt.
On the left, progressive Democrats are unwilling to admit that their year-long attempt to pass broader voting rights legislation has failed, and that fixing the Electoral Count Act may be the best thing they can do. Some are outraged by supporting a bill written by Collins and Manchin, two of the left’s least loved senators.
Many Republicans on the right — especially those facing a primary this year — are afraid to draw Trump’s wrath if they support a bill so directly targeting his baseless campaign to delegitimize the 2020 election. Last week, the former president denounced 16 senators as “Democrats and RENOs” (Republicans in name only).
Thus, it is already clear that this bill, while worthy, will have to be delayed until the midterm elections to take effect.
There are significant arguments about the details of the bill. Most of them stem from long-standing differences between the two parties: in general, the Democrats want clearer and more detailed rules governing the actions of the states, while the Republicans want to preserve the autonomy of the states.
For example, the proposed bill states that a state can only delay elections in the event of “extraordinary and catastrophic” events; some Democrats have said they want the provision to be more specific.
The bill replaces the old rule that one member of the House of Representatives and one member of the Senate can object to the state’s electors; instead, it will take 20% of each body to challenge. Some Republicans would like to lower that threshold; some Democrats want to raise it and limit the grounds for objection.
All these are legitimate grounds for debate – and they will be discussed. Sen. Amy Klobuchar, Minnesota, chair of the Senate Rules Committee, announced that her panel will soon hold hearings on the legislation. Rep. Liz Cheney (R-Wyoming) and Zoe Lofgren (D-San Jose) are working on their own proposal on behalf of the House of Representatives. The 6th Committee is a lineage that is almost guaranteed to draw Trump’s wrath.
In the Senate, any bill would need at least 60 votes to pass the filibuster, which means it would need to be supported by at least 10 Republicans if all 50 members of the Democratic Party caucus supported it. In the House, supporters of the bill expect Republican Trump supporters and at least some progressive Democrats to vote against it.
But the argument for compromise is reinforced by deadline pressure. The new and improved Electoral Counting Law is no theoretical insurance against a once-in-a-century event. It’s more like insurance against a fire in an area where an arsonist has started a fire and is threatening to strike again.
Congress must pass some version of this bill by the end of the year; the job will only get harder when the 2024 presidential campaign kicks off. And if pro-Trump Republicans take control of the House of Representatives in November, the bill could simply die. Now is not the time to let the best be the enemy of the good.