If the Senate passes the Electoral Count Reform Act with a filibuster-proof bipartisan majority, that would be a strong vote of confidence for the future of the nation’s most important official function — the conduct and tallying of its presidential elections.
2020 was not the first disputed election. The United States has had its share of those through its history. The 1876 election of Rutherford B. Hayes may be the starkest example. Samuel J. Tilden collected the most votes, but arguments arose over the Electoral College count. Allegations of voter suppression, fraud and violence were rampant. The dispute ended when Democrats agreed to cede electoral votes to Hayes in exchange for promises to remove federal troops from the South, where they had been since the end of the Civil War.
The nation emerged from that crisis. It remains to be seen whether it can set aside the far-less legitimate crisis of 2020, in which Donald Trump claimed, against all evidence, that he had won. The dangers of his claim and the extent to which his followers agreed was manifested in a mob attack on the nation’s Capitol on Jan. 6, 2021, while Congress was in session to ratify the electoral count.
Unfortunately, it continues to plague the nation’s politics at all levels. A bipartisan change in how electoral votes are tallied and certified could do much to restore some confidence.
It was because of the election of 1876 that Congress passed the Electoral Count Act of 1887, and it is because of the false claims of 2020 that Congress needs to revise that act.
As passed 135 years ago, the act is confusing as to the procedures for a peaceful transfer of power. The Constitution leaves it to states to decide how to choose presidential electors, and each state has chosen to do so by a popular vote. The states each ratify these electors by a “certificate of ascertainment” issued by its executive, usually the governor or secretary of state.
The act requires the nation’s vice president to preside over the opening and counting of the states’ electoral votes, but it provides little other direction concerning the extent of his or her duties. It allows any member of Congress to object to a state’s tally if it is believed an elector was not “lawfully certified” or the vote was not “regularly given.” Also, the procedures for deciding between two or more sets of purported electors from a state is not clear, especially if rival executives, say, the governor and the secretary of state, each submit their own.
This confusion led Republicans in seven states to claim authority to cast electoral votes in 2020. Trump unsuccessfully pressured Vice President Mike Pence to count alternate electors in key states to change the election’s results.
The revised act, drafted by a bipartisan group of senators, would make it clear that the vice president’s role is purely ceremonial. States must select their electors according to their own laws, and state electors must be certified by the governor only. In order to object to any state’s tally, one-fifth of the members of the House and Senate would have to agree. A three-judge panel with direct access to the Supreme Court would settle disputes quickly.
Nothing in this revision puts American democracy at risk. In fact, it would strengthen the process by which the nation chooses its president. Senate Minority Leader Mitch McConnell, R-Ky., has endorsed it. The Senate Rules Committee voted in favor of it 14-1, with only Republican Texas Sen. Ted Cruz opposed.
As a Deseret News report noted, several opinion polls show nationwide support for this revision by people of all political slants.
The Senate is expected to vote on the act after Election Day, which is Nov. 8. We urge its passage.
Few things are more critical to the strength of the nation than confidence in its elections. The Electoral Count Reform Act won’t bind the ideological wounds that led so many to believe the 2020 election was rigged. It won’t end the disputes in other state and local elections that may arise through distrust or suspicion.
But it would provide clear-cut rules for counting electoral votes, making it harder for anyone to claim fraud without clear and convincing evidence. For a nation governed by laws, not personalities, that is a big step in the right direction.