Reforming Presidential Elections

The editors of the Washington Post are strongly in favor of a piece of legislation making its way through Congress:

Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) have been laboring for months to overhaul the country’s arcane system of counting and certifying votes for president and vice president. Finally, they’ve released a product — and it’s a fine one. Their bill not only guards against the gambits the lame duck White House attempted in 2020, but it also limits the potential for other nefariousness by a future candidate. A companion bill addresses the security of election workers and the U.S. Postal Service and reauthorizes the Election Assistance Commission.

The Electoral Count Act as it stands is full of ambiguities. According to one scholarly study, the losing party in nine of the past 34 presidential elections could have exploited gaping holes in the law to overrule the people’s decision. So far, enough has stood in the way — sometimes a general respect for norms, sometimes particular political courage — to prevent disaster. But the events following the 2020 election, including the Jan. 6, 2021, attack on the Capitol, made clear that the danger of a constitutional coup is real, and growing.

The bill introduced this week would create blocks against the specific maneuvers Mr. Trump attempted. It would clarify that the vice president’s role in certifying electoral votes is “solely ministerial”; that speaks to the former president’s efforts to coerce Vice President Mike Pence — with the help of a mob — into rejecting the votes of several states. It would raise the threshold for Congress to challenge a state’s submitted results from a single member of both chambers to at least one-fifth of members; that answers last year’s frivolous objections from six GOP senators and more than 100 representatives.

Perhaps most important are changes that would impede state-level mischief. By identifying governors as responsible for submitting a slate of electors, appointed according to rules in place before Election Day, the legislation would exclude competing lists from other officials. Better yet is a process to counter a rogue governor who lodges an illegitimate submission for approval by a friendly House or Senate. Under the reformed act, any such attempt could be challenged by a vice-presidential or presidential candidate in federal courts, to whose judgment Congress would be bound. Finally, the bill would ensure that state legislatures can’t simply override the popular vote by calling it a “failed election.”

The Electoral Count Reform Act will not fix everything, because it can’t fix everything: Some additional protections can be provided only by the states; others, including enhancements to the Voting Rights Act desired by Democrats, aren’t politically possible.

IMO, presuming it meets constitutional muster, that’s a good start but it’s no more than a start. As much attention needs to be devoted to restoring confidence in the integrity of elections as to preventing coups. I think that means that a number of the reforms imposed after the 2000 presidential election need to be reversed or, at least, constrained. For example, there should be an election day as prescribed by statute rather than an election period that varies from state to state.