The Washington Post
Preventing a coup in 2024
Congress must fix the Electoral Count Act, immediately.
AGROUP of senators met last week to try to prevent anyone from stealing the 2024 presidential election or from once again inciting an armed mob to attack the Capitol. The bipartisan band, led by Sens. Susan Collins (R-maine) and Joe Manchin III (D-W.VA.), aims to update the 1887 Electoral Count Act, the archaic law that governs how Congress counts electoral votes that became a focus of Donald Trump’s efforts to overturn his 2020 election loss. The fate of the nation’s democracy might rest on whether these senators strike a deal, and soon: If Republicans take the House after November’s elections, a radicalized House GOP caucus will likely refuse to do anything that could be construed as hostile to Mr. Trump.
Some of the Democrats in the bipartisan group want to add voting-related measures to the bill they are negotiating. This is understandable; Congress has done nothing as Republican state legislatures have erected innumerable new barriers to voting. But the group should not get sidetracked. Electoral Count Act reform can attract 60 Senate votes; voting rights measures cannot.
Simply updating the act would be an important victory for democracy. Following the 2020 vote, Mr. Trump’s lawyers cooked up cockamamie interpretations of the act that would have, among other things, permitted Vice President Mike Pence to throw out electoral votes at will. Thankfully, Mr. Pence resisted Mr. Trump’s pressure campaign to act on these fatuous arguments. But a future vice president might not be so principled.
An alarming number of GOP lawmakers also used the act’s vague language — reading into the act broad congressional authority to intervene when electoral appointments are not “lawfully certified” or when electoral votes are not “regularly given” — to object to counting electoral votes from a series of swing states that Joe Biden carried. This language was not supposed to empower partisan congressional majorities to reject presidential electors at will, but that was essentially the interpretation most House Republicans embraced.
The bipartisan negotiators must clarify the process so it leaves no room for a de facto coup. It should be clear that the vice president serves nothing but a pro forma role tallying electoral votes. Members of Congress should be allowed to object to presidential electors only under extremely narrow circumstances — say, if state officials send in a slate in defiance of a court order. The threshold for triggering a debate on whether to accept a state’s electors should be far higher. The bipartisan group appears to agree on these basics.
It should also take more than a bare majority to sustain such an objection, so it would be extremely difficult for one party to unilaterally overturn a presidential election. So far, the bipartisan group has not agreed on that reform. Lawmakers should clarify the role of the courts, empowering the judicial branch to sort out election disputes before Congress counts electoral votes. And they should make it crystal clear what happens when the House and the Senate disagree on a state’s electoral slate, so there is no question about which candidate gets a state’s votes.
The country cannot limp into another presidential election with electoral rules open to partisan misinterpretation and abuse. Congress should have no higher priority than fixing the Electoral Count Act, immediately.