Opinion: Both parties should work to reform how electoral votes are counted
Clarifying the rules protects our democratic institutions from abuses of power — and the rules in the Electoral Count Act of 1887 are a mess.
Despite a highly partisan environment, Republicans and Democrats alike are worried about, and frustrated with, our country’s elections. The upshot of this anxiety is the chance for a truly bipartisan bill to pass through Congress that would clarify and strengthen our elections: a reform of the messy and ambiguous Electoral Count Act (ECA), which governs how electoral votes are counted in a presidential election.
The most promising talk appears to be coming from a group of nine Senate Republicans, led by Sen. Susan Collins, R-Maine, and seven Senate Democrats, including Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., who are working on a bill to overhaul the ECA.
Clarifying the rules protects our democratic institutions from abuses of power — and the rules in the ECA are a mess. The main section guiding how electoral votes are counted is one 809-word paragraph; 275 of those words consist of a single run-on sentence, resulting in numerous ambiguities. The consequences of this opacity could determine whether we have a peaceful transition of power in our democratic system.
Democrats may be reluctant to pass ECA reforms because they resent that their election reform bill didn’t make it through the Senate. Although both deal with elections, the ECA reform should have nothing to do with the mechanics of voting, campaign finance and redistricting.
Democrats should be careful to not fall prey to the temptation of throwing their favorite unrelated election reforms into an ECA reform bill to make it a pared down version of the Freedom to Vote: John R. Lewis Act. Such attempts would be disingenuous and crush the chance for meaningful reform to the ECA.
Republicans may be reluctant to support ECA reform because they feel doing so would be an attack on the previous administration. This is not true; the need to reform the ECA is not new. The law has been opaque since it was passed in 1887. Democrats were the ones using the ECA to object to electoral votes in 2004 and 2016.
This reform is not about the 2020 election; it is about clarifying a law that makes uncertain the power and discretion of the vice president — who is often a presidential candidate — in determining how and whether electoral votes are counted.
In fact, Republicans, as proponents of limited federal government, should applaud a revision of the ECA that makes it clear that Congress does not have the power to overturn the will of the people in an election that is administered by the states, as required by the Constitution.
The key to seizing this prime opportunity to reform the ECA is to do it in a manageable, bipartisan manner. There are several reforms that must be accomplished, at a minimum. First, it must be crystal clear that the vice president has no discretion to reject the electoral votes of any state. The vice president’s role should clearly be procedural only, running the joint session of Congress that counts the Electoral College votes.
Second, the threshold for objecting to the electoral votes of any state should be raised. Under current rules, it only takes one member of the House and one member of the Senate to initiate a debate about any state. That threshold needs to be drastically increased.
Finally, a clear framework should be established for Congress to count electoral votes and resolve disputes. An updated ECA should be unambiguous in defining the roles of key actors in the process.
Other reforms should be considered as well, including allowing for judicial review in certain limited circumstances, clarifications on timing, etc. These reforms should strengthen and elucidate states’ rights to certify their own elections. However, given Congressional tendency to get carried away legislatively, keeping the reform to a minimum might be in the best interest of getting something passed.
In a nation this divided by partisan politics, any reform to federal election laws ought to be done on a bipartisan basis. It would be even better if that reform could also shore up the rules that govern the peaceful transition of power in our democratic system.
Congress has a golden opportunity to do this with reasonable, bipartisan reform to the Electoral Count Act this session. Let’s hope they take this opportunity as a step toward building back the public’s trust in democracy and our electoral process.
Audrey Perry Martin is a Republican political law attorney with 20 years of election experience. She has worked on several presidential campaigns, for Congress, at the Federal Election Commission, and at private law firms in Washington, D.C., and California. She has taught election law at Brigham Young University law school and is the founder of Project Elect, a nonprofit focused on getting Latter-day Saint women involved in public service.