A bipartisan group of senators reportedly is close to agreement on recommending reforms to a flawed, archaic law that former President Donald Trump abused in his attempt to overturn the 2020 election. The Electoral Count Act of 1887 gives the vice president a ceremonial role in approving state vote counts, but it is worded vaguely enough that Trump claimed, outrageously, that it provided Vice President Mike Pence authority to unilaterally throw out Joe Biden’s victory.
Responsible leaders in both parties understand the urgency of fixing that and other problematic language in the Electoral Count Act now, before a Republican takeover of Congress makes it impossible to move any legislation on this issue. But some Democrats are holding up a deal because they want to roll valid but more contentious voting-rights issues into it. They’re playing a dangerous game. They should accept this half loaf immediately, while they still can.
The act was written in response to the contested presidential election of 1876, in which several states sent competing slates of electors to Washington. The law was an attempt to clarify how Congress should decide such disputes. Unfortunately, its muddled language further confused the issue, while creating an opening that could allow bad actors to corrupt the process. Among those is a provision that allows one representative and one senator to trigger the process of challenging states’ election results. It was this provision that Sen. Josh Hawley, R-Mo., exploited to turn what should’ve been the routine election certification into a showdown that ended with a mob sacking the Capitol on Jan. 6, 2021.
Among the changes that most fair-minded reformers agree is needed is to set the bar for such challenges much higher than it currently is. It should take more than one self-serving member of each chamber to light that fuse, and it should take more than a bare majority of each chamber to reject states’ results. Messing with electoral slates should be the heaviest of lifts.
Similarly, the vice president’s purely ceremonial role needs to be specified. No reasonable person could argue that the law as written gives the vice president power to overturn an election. But Trump backers made exactly that claim, and it was only Pence’s responsible refusal to indulge them that prevented a constitutional crisis.
The bipartisan working group, headed by Sen. Susan Collins, R-Maine, and Sen. Joe Manchin, D-W.Va., reportedly is in general agreement on those reforms. The problem, Collins said last week, is that some Democrats want to relitigate other issues from their recent failed attempt at omnibus voting rights legislation.
Such legislation shouldn’t be controversial, but it is, and it may yet prevent Congress from acting to head off any future replay of Jan. 6 — or worse. Democrats should accept this limited but important safeguard for democracy, and live to fight another day on the rest.
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