It may seem improbable, given adamant Republican opposition to legislation protecting voting rights, but a bipartisan group of senators is close to agreement on a separate, crucial way to protect our democracy: reforming the Electoral Count Act of 1887.
A serious threat to our democracy is this scenario: A state legislature appoints a slate of presidential electors in defiance of the state’s popular vote, and one chamber of Congress, controlled by the same party, counts those electors. Under current law, those electors would stand, potentially tipping a close election.
But now, these senators appear to be homing in on solutions to that problem. If they succeed, it would constitute a substantial accomplishment, thanks in part to the House Jan. 6committee’s focus on President Donald Trump’s attempt to overthrow U.S. democracy.
This week, the senators are expected to reach a deal on ECA reform. Trump revealed the ECA’s vulnerabilities by pressuring his vice president and congressional Republicans to invalidate electors appointed for Joe Biden in several states, as part of a plot to get them to appoint new electors for Trump.
The belief that this was actually possible — itself a legacy of the ECA’s flaws — helped inspire the violence of Jan. 6, 2021.
And so, ECA reform’s highest-profile elements would address those vulnerabilities. This would include clarifying the vice president’s role as purely ceremonial, expressly stating that the position has no power to invalidate electors or delay their count.
It would also include raising the threshold for Congress to object to a slate of electors. Right now, only one member from both the House and Senate can force a vote on whether to cast out electors. The reform would require one-fifth of each chamber to force that vote.
But in a twist, the relentless attention on that aspect of Trump’s scheme — pressuring his vice president and congressional Republicans — has overshadowed another essential element of ECA reform: how to address corruption of the state-level process for appointing electors.
First let’s note that all states appoint presidential electors in keeping with the popular vote outcome in them, a process that states previously established with legislation.
But imagine if a state legislature, with the backing of the governor, claims widespread-but-fictional election fraud as a pretext to violate that previously established process — and to appoint electors for the candidate who lost the popular vote.
If one chamber of Congress — say, the House of Representatives controlled by the same party those state actors and that candidate belong to — counts those electors, they’d become valid.
That’s even if the Senate objects to those electors. Under the current ECA, both chambers must object to electors to invalidate them. If one objects and the other counts them, they stand.
In short, all it takes is one state’s governor, in complicity with the House, to overturn a state’s outcome, and with it a very close national election. That’s the nightmare that experts such as Matthew Seligman and Richard L. Hasen urgently warn against.
Now, however, solutions to this threat are also being debated as part of ECA reform. According to two sources familiar with the talks, here are some of these solutions, though they’re in flux or could drop out entirely:
- Presidential electors must be appointed by the manner the state’s laws dictated before Election Day. This would prevent a state legislature and governor from appointing sham electors after the voting.
- If a state appoints a slate of electors before a deadline — the sixth day before the presidential electors meet — it overrides any electors appointed after that deadline. This would also avert post-vote shenanigans.
- The governor of each state must certify the electors before that deadline. If a governor violates this duty, the aggrieved candidate can appeal to a three-judge panel of two circuit court judges and one district court judge.
- The slate of electors deemed the legitimate one by the federal courts is conclusive.
- Congress must count the slate of electors deemed the legitimate one by this revised process for states. This means if the federal courts deem one set of electors operative, Congress must count them, and must not count other electors, even ones certified by a state legislature or governor.
- If an election is disrupted by a disastrous event, the state legislature cannot simply appoint electors. It can only extend the voting period. This averts another scenario — a legislature finds a pretext to declare the voters failed to reach a decision, and appoints electors itself — which the current ECA might allow.
It’s not at all certain these ideas will end up in the final product. A spokesperson for Sen. Susan Collins (R-Maine), a leader of the bipartisan group, said these contain “inaccuracies," and warned that talks are fluid.
But they would be critical, especially with so many candidates running for state-level positions across the country on an implicit (or even explicit) willingness to use their offices to reverse hated election losses.
“These particular reforms are essential,” J. Michael Luttig, a retired conservative judge widely respected by Republicans, told me. “They would all but ensure that the country will never endure another Jan. 6.”
All it would take is 10 GOP senators to agree — and no Democrats defecting over the absence of voting rights legislation — and it can be so.
Clarification: I’ve tweaked the scenarios envisioned above in response to an objection from election law expert Edward Foley.
