Be they attention-seekers or true believers in some form of conservatism, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia — the only two Senate Democrats who opposed changing the Senate’s filibuster rule in last Wednesday’s floor debate — have dramatically closed the path to expansive election reform. The proposals outlined in the now-failed bills — such as making election day a federal holiday and protecting early voting — are hardly radical, and grow ever more necessary as Republican-controlled state legislatures pass dozens of restrictive laws.
These losses are tremendously unfortunate, risking a further chilling effect on common civic participation and faith in democracy. And that is precisely why progressives must move on from them as quickly as possible and set their sights on a narrower target. Democrats should move immediately to negotiate a reform of the Electoral Count Act — an outdated law which allowed right-wing Republicans to contest the 2020 election, among other incidents — relying on the very senators who sunk their more sweeping bills.
This admittedly obscure law hardly draws as much attention as more tangible reforms. Rewriting the ECA would not make it easier for individual people to vote, nor empower the federal government to block gerrymandering and unfair redistricting. But this law’s provisions have been implicated in some of the worst electoral crises of this century, from the 2000 election to the attempt to overturn the results of the 2020 election.
The ECA, ironically, was adopted to resolve confusion in future presidential elections following the disputed election of 1876. But its unintelligible wording, combined with ill-considered provisions about certifying state electoral votes, have made it a tool of chaos instead. Even before the events of January 6th, its “safe harbor” deadline — set arbitrarily at 35 days after the election — was used as a legal basis for the Supreme Court to stop the Florida recount in 2000.
While denying legitimate attempts to ensure the accuracy of elections, the act has simultaneously fueled baseless accusations of fraud. Democrats are not blameless in this; in 2004, two congressional Democrats used the act to object to Ohio’s electors on spurious claims of “irregularities.” But Republicans have certainly made the worst offenses — indeed, the 2020 Trump campaign twisted the language of the act to mount an all-out assault on democracy following the November election, attempting to convince Vice President Mike Pence to use the law to throw out the votes of seven states that voted for Biden. Though Pence disagreed with the then-President’s interpretation and refused, the fact the act left such ambiguity is inexcusable.
The act’s even more problematic provision — that a single representative and senator can together object to the results of a state’s electoral votes — became the next obvious point of attack in the attempts to overturn the election. Even after rioters stormed the capital on Jan. 6, a handful of Republican senators objected to the counts in Pennsylvania — not to mention a majority of House Republicans. Both this and an earlier dispute to Arizona’s count were voted down resoundingly, but not before dozens of members of Congress had the chance to disseminate lies about voting integrity and further stoke the flames of conspiracy.
But, hopefully, it seems more members of Congress have recognized the harm the ECA can wreak. In recent weeks, even a number of Republicans have voiced willingness to reform the law. Senate Minority Leader Mitch McConnell, a Republican from Kentucky, expressed interest in changes, although the scope of what he supports remains unclear. Meanwhile, a bipartisan negotiating group in the Senate has been picking up steam, gaining about a dozen members, according to Utah Sen. Mitt Romney, a Republican. Sinema is part of this group as well.
This bipartisan group may not affirm all that we want in a free, fair democracy, but they may be the best route to prevent active erosion of elected government. Democratic leadership seems insistent on waging losing battles, with Nancy Pelosi claiming the election bills still have some chance of passage — with 52 votes against Senate rule changes, it’s not happening. Meanwhile, the Jan. 6 Commission is set to make recommendations for reform — though their report is not due for months. As hard as it may be, liberals must swallow their pride and compromise with the moderate senators who scuttled broader reforms.
A broader array of Democrats should join the negotiations full steam in order to ensure certain minimum standards of any bill which passes. For one, the bar for objecting to state electoral votes must be raised, increasing the required number of senators and representatives. Clarifying the language in all parts of the bill is another equally important step, most especially in stipulating the Vice President’s ideally ceremonial role in the process. Finally, arbitrary deadlines for when states must have their certified count in should be abandoned, especially given that mail-in voting means some counting, especially in very close races, often takes longer. Rather, states should be held to the standard to count every vote, with greatest accuracy; when elections are decided by 0.01%, as in 2000, time should be taken to get it right.
Reforming the ECA will not be a panacea. The restrictions to voting being implemented in Republican-controlled states could still dissuade many citizens from exercising their rights. In other words, we are still being haunted by the Trump campaign’s 2020 efforts. While they failed to overturn the election, by creating the appearance of electoral chaos and irregularity, they have laid the groundwork for a crack-down on supposed fraud. The enshrining of long overdue voting protections will have to wait. But let us at least ensure that the events following the 2020 election cannot happen again. The Electoral Count Act, the greatest legal weapon of that assault on democracy, must be reformed.
