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The failure of a voting rights bill backed only by Democrats in the Senate is putting a new focus on a bipartisan effort to block election subversion in the future.
“I predict to you that we’ll get something done on the electoral reform side of this,” President Biden said Wednesday afternoon at a White House press conference.
Talks have been ongoing for the last week or two, led by Sen. Susan Collins, R-Maine. Republicans and Democrats have taken part, and Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., have been “vocally involved,” according to one Senate staffer. On Wednesday night, other Democrats, such as Sens. Amy Klobuchar of Minnesota and Dick Durbin of Illinois, were reportedly joining the effort.
While Democrats have dialed up the rhetoric around voting rights, the entire focus and thrust of these negotiations is aimed at a different problem: election subversion.
When politicians seek to throw out votes, or overturn results after ballots have been cast, that’s election subversion. And it’s what then-President Donald Trump and his Republican allies attempted to do in the aftermath of the 2020 election, when numerous GOP lawmakers attempted to undo the results. Such sabotage now risks becoming a regular part of American politics.
The effort to stop this, or at least make it harder, centers around making changes to one law: the Electoral Count Act of 1887. The ECA, which came about as a response to the disputed presidential election of 1876, stipulates how Electoral College votes are counted and then certified by Congress.
Much discussion about this law has focused only on clarifying that the vice president, as president of the Senate, has nothing more than a ceremonial role when election results are certified in Congress.
Trump pressured his vice president, Mike Pence, to stop the Senate from certifying election results that showed Joe Biden winning. Trump, citing allegations of fraud that had no merit, wanted Pence to simply sweep those votes aside and help install him as president for another four years. Pence refused, noting correctly that he did not have that power under the Constitution.
ECA reform would leave no doubt that the vice president’s role is purely as a functionary during certification. But clarifying that provision is only the tip of the iceberg. There are many vulnerabilities in the ECA that are open to abuse by lawmakers and partisan officials who would attempt to reverse the results of a fair election.
For example, Seligman says, if one political party controlled both chambers of Congress, it could theoretically — under current law — toss out the votes of millions of Americans and hand the presidency to a member of its own party. Such an effort would be unethical and unconstitutional — but not necessarily prohibited under the ECA. Seligman argues that this is one reason the ECA should be reformed: to make the letter of the law compliant with the Constitution, which does not give Congress a substantive role in choosing the president.
Additionally, at the state level, the ECA gives governors enormous power over the slate of electors sent to the Electoral College. As of now, there is room under the law for a state legislature to try to throw out the popular vote in its state by sending a competing slate of electors to Congress. If the governor signs off on that slate, then the law would dictate that those electors are the ones that are counted.
Trump and his allies pressured Georgia Gov. Brian Kemp to do a variation of this in 2020. Kemp refused.
Seligman told Yahoo News that he began working on an analysis of the ECA about five years ago, in 2016, when Trump said he might not accept the results of the election that year if he lost.
“I started thinking about how that sort of dispute might play out, in the context of increasing polarization, through legal mechanisms: what legal scholars call constitutional hardball,” Seligman said. “It became clear to me after looking at it for a while that the ECA was one of the singularly vulnerable parts of the legal framework in a disputed presidential election.”
Seligman published an 87-page report on the ECA last Friday, which goes into granular detail about how the law can be abused. In fact, he said, the weaknesses in the law are so numerous that “even after the events of 2021, the Electoral Count Act is almost entirely untested.”
ECA reform is needed, Seligman said, to prevent “an even more explosive conflict in 2024 and beyond” than what took place in the months after the 2020 election, leading up to the Jan. 6 assault on the U.S. Capitol by Trump supporters.
“The Act is structurally unsound and requires re-engineering,” he wrote in the report.
He is far from the only voice warning of the grave risk ahead if Congress does not reform the ECA. Rick Hasen, a leading expert on democracy and election reform, told the New York Times that the U.S. is “in a new level of crisis.”
“The No. 1 priority should be ensuring we have a fair vote count,” said Hasen, a law professor at the University of California, Irvine.
Senate Minority Leader Mitch McConnell, and his top deputy, Sen. John Thune, R-S.D., have already said they would like to see the ECA updated. Senate Majority Leader Chuck Schumer has also signaled openness to changes, even though he was reluctant to discuss it while he focused on pushing the doomed voting rights bills through the Senate.
Sen. Thom Tillis, R-N.C., demonstrated the strong desire among some Republicans to reform the ECA during a floor debate Wednesday. As he spoke against abolishing the filibuster, he displayed a large placard printed by his staff. On that poster, he listed changes to the ECA as among his top election-related priorities.
The House Administration Committee released a 35-page report a week ago on the topic as well. “Congress needs a new, clear process to certify presidential elections,” the report said.
One of the main complaints about the ECA focus so far has come from Democratic lawyers like Marc Elias, who has been leading his party’s election law litigation efforts. Elias noted that bad actors can try to sabotage an election at the state or even the county level, and not just in Congress.
So, Elias has argued, making sure that the party that controls Congress can’t throw out legitimate election results is only half the equation.
“If you knew that in 2024 Republican state election officials will simply refuse to certify a Democratic candidate the winner, would you still think ‘reforming’ the Electoral Count Act to rubber-stamp state results was a good idea?” he said.
Seligman agreed with the critique but said it’s possible to reform the ECA to stop cheating in the certification process both at the state level and in Congress.
“The challenge — aside from the politics — is to design the new ECA in a way that recognizes that the risk of subversion through the ECA arises in multiple places in the process,” Seligman wrote. “In particular, both state officials and members of Congress can manipulate the ECA, in different ways. Remember in 2021, some in Congress tried to reject legitimate slates of electors and some in state legislatures tried to submit illegitimate fake slates.”
The House Administration Committee report, Seligman said, “attempts to eliminate almost entirely the role of Congress in rejecting single slates or choosing between multiple slates, by attempting to compel governors to certify the legitimate slate."
“That’s a laudable goal, but it tragically underestimates the risk of rogue governors (or state legislatures!) and dangerously overestimates the capacity of pre-Jan. 6 procedures to ensure only the right slate reaches Congress,” he said.
A House Administration Committee aide told Yahoo News that it has “reviewed the [Seligman] report and [is] continuing to evaluate a broad spectrum of proposals to reform the ECA.”