Pass Electoral Count Act, even if it’s imperfect
The Electoral Count Reform Act is a bipartisan compromise that comes in response to hyperpartisan division. It’s no surprise the legislation isn’t perfect. What it is, however, is essential.
Critics from academics to activists have had plenty to say so far about the bill that Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., presented last month. They’ll likely have plenty to say in Wednesday’s hearing on the subject as well. These concerns deserve consideration, but the ECRA, at its core, ensures presidential elections proceed according to clear rules set ahead of time, rather than political exploitation after the fact. Lawmakers should seize on so significant an improvement over the dangerously muddled status quo.
Some issues are mostly a matter of clarifying the text. Does the vice president have the power to delay the election? Does a governor’s position as “conclusive” certifying authority mean that no court may overrule his submission of electors? The answer in both cases is no; this is fairly clear already, but lawmakers could make it clearer. A few more substantive alterations, such as extending the six-day period provided for judicial review of clashes over certification, are also worthwhile if they can garner enough support. Raising the threshold for objectors necessary to pause the counting process from one-fifth of each chamber to some greater proportion would do no harm, but there’s no magic number, and no reason to risk sinking a crucial reform by trying to find one.
There are thornier problems. Some say that, because a state’s laws before Election Day are considered decisive, a state legislature could empower itself ahead of time to ignore the popular vote. This worry is overblown; the 14th Amendment precludes any law that results in people’s votes not being counted equally. Admittedly, vulnerabilities will remain as long as states are allowed to choose their own methods for appointing electors — but for better or for worse, that’s what the Constitution demands. Some also claim that letting states define for themselves the “extraordinary and catastrophic” events that can result in a failed election leaves too much room for mischief. Again, there’s less to fret over than it appears: States’ own definitions are written ahead of time, and the only permissible response to a failed election is an extension of the voting period.
Congress should give all these gripes their due and improve the proposal where politically possible. In the end, however, the legislation has to pass in whatever imperfect form it takes. Former President Donald Trump may well pounce again on the Electoral Count Act’s gaps and ambiguities if he runs in 2024. Otherwise, eventually someone else will. As lawmakers consider modifications to the bill before them, they should take care to distinguish between constructive tweaks and poison pills — so as not to kill the country’s best chance at avoiding disaster.