A bipartisan group of Senate negotiators has come up with legislation that could avert another presidential election disaster like Donald Trump’s attempted coup, at least in part. This legislation would ensure the kind of plot Trump cooked up to exploit the vagaries of the Electoral Count Act of 1887 to dispute the validity of some states’ electoral votes would be virtually impossible. It would make sure that the votes the state presents are counted accurately. What it wouldn’t do is prevent those states from rigging elections through voter suppression and other means.
As the law now stands, one single member in each chamber of the House and Senate can object to a state’s electoral results and can have those objections voted on. If a simple majority of both chambers votes to sustain an objection, it stands. The Electoral Count Reform and Presidential Transition Act, created by a bipartisan group of senators headed up by Sens. Susan Collins (R-ME) and Joe Manchin (D-WV), would increase the threshold for objections to one-fifth of the members of each chamber.
“This change would reduce the likelihood of frivolous objections by ensuring that objections are broadly supported,” according to the bill summary. “Currently, only a single member of both chambers is needed to object to an elector or slate of electors.” The reform would also clarify the vice president’s role in counting electoral votes, declaring it “ministerial,” or simply ceremonial. She would simply preside over the counting and have no power to reject votes.
“Through numerous meetings and debates among our colleagues as well as conversations with a wide variety of election experts and legal scholars, we have developed legislation that establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President,” the Senate group said in a joint statement. “We urge our colleagues in both parties to support these simple, commonsense reforms.”
The proposed legislation would task each state’s governor with the official responsibility for submitting the state’s slate of electors, unless a state’s laws or constitution specify another party. Congress could only accept the slate submitted by the governor or other designated official. It would provide for expedited review for presidential candidates’ election disputes, providing a direct path for appeals to the Supreme Court. It is available “only for aggrieved presidential candidates and allows for challenges made under existing federal law and the U.S. Constitution to be resolved more quickly.”
A separate bill, the Enhanced Election Security and Protection Act, increases the federal penalty for people convicted of intimidating or threatening election officials, poll workers, poll watchers, voters, and/or candidates. The current penalty is one year in prison; it would increase it to up to two years. It would also clarify that federal law requires election officials to preserve election records electronically, make it illegal to tamper with voting systems and machines, and it would up the penalty for willfully stealing, destroying, concealing, mutilating, or altering election records from $1,000 to $10,000 and from one year in prison to up to two.
This is all good and necessary, but it’s just the beginning of saving our democratic system and our elections. That’s because Republican legislatures have been toiling away at rigging elections, all the way from limiting who actually gets to cast ballots to who counts those ballots to who gets to throw counted ballots out—and of course, who gets to certify elections. Making sure that Congress can certify completely corrupted elections with a clean process doesn’t make for free and fair elections.
That’s even more critical now that the Supreme Court will hear a challenge from North Carolina Republicans in a redistricting case that would give state legislatures ultimate authority over federal elections, the power to shape all the rules governing those elections in their states.
We still need the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, the legislation that hasn’t passed in the Senate because Sens. Manchin and Kyrsten Sinema (D-AZ) have refused to get rid of the filibuster to pass it.
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