September 26, 2022

In Brief: Electoral Count Act Reform

There are issues with Democrat legislation — primarily political gamesmanship — but the effort isn’t all bad.

The Presidential Election Reform Act passed the House last week. We argued that it’s largely a needed reform, though most Republicans object because it’s a Democrat bill cosponsored by Liz Cheney. The editors of National Review make the case, however, that there are some things to like and fight for.

The House bill would amend the Electoral Count Act of 1887 in order to avoid a replay of the challenges brought to certifying the 2020 election. It is rare that anything good comes out of a largely party-line Democratic vote by Nancy Pelosi’s caucus, and there are at least one or two genuine differences between the House and Senate versions of ECA reform on which the Senate should hold the line. Nonetheless, Senate Republicans should push for a prompt vote on the Senate version of the bill with the aim of getting ECA reform enacted into law in this Congress.

As we have urged in previous editorials, the basic structure of the ECA is a good one, giving primacy to the states in determining the winners of each state’s presidential electors, but the 1887 bill’s meandering language is in need of clarification. Both the House bill and the Electoral Count Reform and Presidential Transition Improvement Act (the Senate version) would preserve that basic structure while addressing the ambiguities exploited by Donald Trump in January 2021 (and, to a lesser degree, by Democrats in 2005 and 2017). Both bills would:

(1) Clarify that the vice president’s role in counting electors is ministerial and does not include the power to make unilateral rulings on whether to count a state’s electoral votes;

(2) Significantly raise the number of objectors necessary in order to force a vote on objecting to a state’s slate of electors;

(3) Restrict states from changing their laws for selecting electors after Election Day, with the primary aim of preventing state legislatures from appointing their own electors if they don’t like the results of the popular vote;

(4) Tighten the rules on governors certifying electors and courts resolving challenges, while extending the time for the Electoral College to meet, with the goal of ensuring a swift and certain determination of election disputes before the electors cast their ballots;

(5) Clarify that the only grounds for a state to hold additional votes or to claim that an election was not duly held on Election Day is if the state suffered a catastrophic event such as a natural disaster or terrorist attack that disrupted the vote; and

(6) Require that lawsuits by presidential candidates under federal law be brought in a three-judge district court in the state’s capital in expedited fashion.

The editors note a few differences, such as the numbers of Members necessary for an objection vote. They say Senate Republicans should draw that line at one particular House provision that will result in many election challenges being co-opted by federal courts. Quibbles aside, the editors rhetorically wonder “whether the Democrats are sincere in wanting ECA reform enacted into law at all, rather than giving them a talking point with which to campaign against Republicans as election deniers.” The House version does, for example, come complete with a “an unnecessary Trump-bashing preamble.” They conclude:

While the Senate bill now has ten Republican cosponsors along with the sponsorship of all 50 Senate Democrats, and could therefore surmount any filibuster, it has yet to be brought up for debate in the Senate. In the spring, President Joe Biden and Majority Leader Chuck Schumer both openly opposed a vote on ECA reform for fear that it would undermine their case for a broader overhaul of voting and elections law, which predictably failed. On Tuesday, Mitt Romney accused Schumer of dragging his feet on holding a debate on ECA reform because he was “looking for a messaging bill to show that Republicans are unwilling to protect our elections process.” The bipartisan Senate group spent months meeting and studying the Electoral Count Act before reaching a legislative agreement to reform it on July 20. Legislative text of the House bill, by contrast, was released on Monday, and Pelosi forced a vote a little more than 48 hours later — bypassing the committee process and ensuring it would get as few House GOP votes as possible.

Romney and other Senate Republican supporters of ECA reform should call the Democrats’ bluff and demand a prompt debate and vote. If Schumer continues to resist, it will be further evidence that Democrats’ professed concern for the integrity of our democratic election process is just another cynical campaign slogan.

Read the whole thing here.

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