J. Scott Applewhite/AP Photo
Vice President Mike Pence hands the West Virginia certification to staff as Speaker of the House Nancy Pelosi listens during a joint session of Congress after working through the night to certify the electoral count following the January 6 insurrection, at the Capitol in Washington, January 7, 2021.
With Republicans set to block voting rights legislation, many Republicans and some Democrats are promoting revision of the Electoral Count Act as an attainable second best. They are either cynical or naïve.
The Electoral Count Act (ECA), enacted in the wake of the corrupt bargain of 1877 that installed Rutherford B. Hayes as president and ended Reconstruction, established procedures for Congress and the vice president to certify electors. In the attempted January 6 coup, Trump wanted Pence to go beyond the vice president’s ceremonial role and overturn enough state results to throw the election into the House, where Republicans controlled a majority of delegations.
Presumably, reform of the Electoral Count Act would prevent any such ploy. The Wall Street Journal has been promoting the idea; and surprisingly, our former colleague Matt Yglesias has been taken in by it.
Yglesias wrote in his newsletter this morning, “ECA reform is good on the merits—it won’t fix American political institutions or ‘save democracy,’ but it will reduce the odds of a collapse, and reducing those odds is important. Passing and signing bipartisan bills also tend to be at least a little bit popular and make the president who’s doing it look good.”
Sorry, but this kind of “reform” is worse than nothing. It is bipartisanship on Republican terms and it fails to address the real threats to American democracy.
Article II of the Constitution provides that presidential electors shall be appointed “in such manner as the Legislature thereof shall direct.” The escalating threats to a free and fair election are not in the procedures of final count when Congress gathers, but at the state and local level.
According to the latest report of the Brennan Center, partisan reviews of election results were attempted in six states in 2020 (Arizona, Georgia, Michigan, Pennsylvania, Texas, and Wisconsin), and similar legislation has been prefiled in five more (Florida, Missouri, New Hampshire, South Carolina, and Tennessee). If Republican legislatures and governors can rig the results before they notify Washington of the certified winner, preventing mischief in the final count by the VP is beside the point.
In addition, Republicans are trying the same maneuvers at the local level, taking over election boards as well as erecting barriers to the right to vote. According to Brennan, at least 152 restrictive bills in 18 states will make it harder to vote.
Even the now-moribund voting legislation pending before the Senate does not address all of these abuses. If that legislation does go down, we have three avenues to keep democracy alive: litigation in state courts, full use by the attorney general of what remains of the 1965 Voting Rights Act, and a massive voter mobilization and turnout.
What’s really needed is a federal takeover guaranteeing the franchise. In effect, that’s what the 1965 Voting Rights Act did before it was gutted in the majority-opinion 2013 case of Shelby County v. Holder, written by one John Roberts.
But the last thing we need is sham reform.
