Why Are Republicans Suddenly Interested in Reforming an Election-Related Law? – The New Yorker
Its been a terrible twelve months for voting rights in the United States. By the end of 2021, according to the Brennan Center for Justice, at least nineteenstates had passed a combined thirty-fourlaws that restrict access to voting, and legislators in at least twenty-sevenstates are currently working onmore than two hundred and fifty bills that would do the same. In the Senate, Republicans have thwarted every attempt by Democrats to protect the right to vote, successively rejecting the comprehensive For the People Act, the John Lewis Voting Rights Advancement Act (which would have restored those parts of the Voting Rights Act of 1965 that were eviscerated by the Supreme Court, in 2013), and, most recently, the Freedom to Vote Act, which was constructed to appeal to Republicans. (It didnt.)
So it struck many as odd that when, last month, some Senate Republicans, led by Susan Collins, of Maine, dangled the prospect of a bipartisan fix to an existing piece of election-related legislationthe Electoral Count Act, of 1887the Democratic leadership was less than enthusiastic. At the time, the Party was pressing Senators Joe Manchin, of West Virginia, and Kyrsten Sinema, of Arizona, to agree to change the filibuster rulescurrently the only way forward for voting-rights legislationand the two senators were holding out for a buy-in from their Republican colleagues. The timing of Collinss approach, then, raised suspicions in some Democratic quarters that it was intended to circumvent those discussions. Even more problematic, it appeared to be a bait and switch, since the Electoral Count Actwhich is meant, among other things, to codify procedures in Congress for counting Electoral College votes several weeks after a Presidential election has taken placehas nothing to do with protecting the right to vote. As Chuck Schumer, the Senate Majority Leader, said, If youre going to rig the game and then say, Oh, well count the rigged game accurately, what good is that?
There is no doubt that the E.C.A.whose official long title is An act to fix the day for the meeting of the electors of President and Vice-President, and to provide for and regulate the counting of the votes for President and Vice-President, and the decision of questions arising thereonis flawed, potentially dangerous, and in need of reform. It was enacted in response to the contested Presidential election of 1876, when Samuel J. Tilden, the Democratic nominee, who appeared to have won the popular vote, came up one vote shy of the hundred and eighty-five Electoral College votes then required to assume the Presidency. His Republican opponent, Rutherford B. Hayes, tallied around twenty fewer votes, but, after officials in Florida, Louisiana, South Carolina, and Oregon sent competing slates of electors to Washington, the outcome was thrown into doubt. Ultimately, Southern Democrats agreed to cede the election to Hayes, in return for the removal of federal troops and the restoration of local rulea euphemism for the Jim Crow laws that followedeffectively ending Reconstruction.
The E.C.A., which was passed a decade later, was intended to avoid any future such crises by clarifying the practices and procedures for certifying a Presidential election, laying out the process with more specificity than the Twelfth Amendment, which sets out the protocol for electing the President and Vice-President. Among other things, the E.C.A. establishes a safe harbor deadlinesix days before the meeting of the Electoral Collegeby which states must resolve disputes about the winner of the election. (In most states, slates of electors formally select the candidate who won the popular vote there; Maine and Nebraska use a congressional-district method.) The E.C.A. also enables members of Congress to object to counting votes from certain states, as long as one senator and one House member object in writing. The law does not, however, indicate what constitutes an appropriate objection, leaving that up to Congress. For an objection to stick, it needs to garner a simple majority in each chamber. (That has never happened. On January 6, 2021, after the attack on the Capitol, Senators Ted Cruz, of Texas, and Josh Hawley, of Missouri, were prominently chastised by some of their Republican colleagues for what were perceived to be bald attempts to further their own political ambitions by currying favor with Trumps base, through continued objections to counting the votes from Pennsylvania and Arizona. In total, fewer than a dozen Republican senators and more than a hundred Republican representatives voted against certifying the Presidential elections results.)
Even before the 2020 election, commentators were warning that the E.C.A. could be used to upend the outcome in states, for example, with a Democratic governor and secretary of state but a Republican-controlled legislature. If Trump had an early lead in the votes, experts warned, the Republican lawmakers in those states might submit a slate of Trump electors (based on provisional results), while the Democratic governor, waiting until all the ballots were counted to submit a slate, could miss the safe-harbor deadline. If this were to happen, the observers warned, the Vice-President could invoke the E.C.A. and potentially void a legitimate slate of Biden electors, handing the election to Trump. According to an investigation by the Washington Post, some of Trumps campaign officials, and his attorney Rudolph Giuliani, had a similar idea. They were reportedly behind an effort that saw illegitimate slates of Trump electors from five states that Biden wonWisconsin, Nevada, Arizona, Georgia, and Michiganpresent themselves at their state capitols and send signed fake certificates to Washington. Republican electors from two additional states, Pennsylvania and New Mexico, also sent certificates, but, the Post noted, those documents explicitly stated that they were to be considered only if the election results were upended. (Giuliani and a Trump spokesperson did not respond at the time to the Posts requests for comment.) Around the same time, some of Trumps most ardent supporters, led by Representative Louie Gohmert, of Texas, brought suit in U.S. District Court arguing that the E.C.A. is unconstitutional. They claimed that, as Vice-President, Mike Pence may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State, and must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority and his sole discretion to determine the count, which could include votes from the slates of Republican electors from the Contested States. After the case was tossed out, it was appealed to the Supreme Court, which received it on January 6th, just as Trump and the Stop the Steal rioters were hounding Pence to do Trumps bidding. The Court rejected the suit the next day.
Trump, for his part, still seems to think that Pence had the power, under the E.C.A., to single-handedly reverse the will of the people. In a statement issued a few weeks ago, he wrote, If the Vice President (Mike Pence) had absolutely no right to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election? Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didnt exercise that power, he could have overturned the Election!
Despite the former Presidents convoluted and faulty logic, he and his supporters might be forgiven for invoking the E.C.A. in contradictory ways. Writing about the law after the 2020 election, my colleague Steve Coll called it kludgy. As the Times has pointed out, it isa morass of archaic and confusing language. One especially baffling sentence inSection 15which lays out what is meant to happen when Congress counts the votes on Jan. 6is 275 words long and contains 21 commas and two semicolons. Bob Bauer, a law professor at New York University who advised the Biden campaign on voting rights and voter protections, told me that the E.C.A., as it is written, is premised on and reflects a role for Congress that is not consistent with the constitutional designor even with basic intuitionsabout the imperative of limiting political manipulation of the electoral process. But reforming the E.C.A. by increasing the number of Congress members required to object to a slate of electorsa provision supported by some Republicans and Democratsactually may exacerbate the danger of manipulation. As the journalist Judd Legum has argued in his newsletter Popular Information, this could make it harder for Congress to reject a slate of phony electors submitted by a governor who supports a candidate trying to steal an election. (For example, David Perdue, who is running for governor in Georgia, has said that, if he had been governor in 2020, he would not have certified the states results of the Presidential election. Trump has endorsed Perdue over the incumbent Republican governor, Brian Kemp.)
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Why Are Republicans Suddenly Interested in Reforming an Election-Related Law? - The New Yorker