The proposed Electoral Count Reform Act, which would make explicit the process for certifying the Electoral College vote that determines the outcome of a presidential election, should never have been necessary.
Regrettably, it is, and the need to reform and clarify the process on which rests the peaceful transfer of power in this country is urgent.
The original 1887 Electoral Count Act, which admittedly was a bit vague, nevertheless held for more than 130 years. Every president has abided by the will of the electorate and surrendered power to a new administration based on the Electoral College vote until former President Donald Trump. Intent on exploiting every potential avenue — legal or illegal — for clinging to power, Trump and his allies in January 2021 attempted to persuade then-Vice President Mike Pence to somehow transform his ceremonial role overseeing the count into an opportunity to nullify the will of the American people.
In a Rules Committee hearing led by Minnesota Sen. Amy Klobuchar, its chair, Klobuchar said that "the claim was made that the Electoral Count Act as it exists would allow the vice president to refuse to accept electoral votes that were lawfully cast. We watched in horror as a mob stormed the Capitol chanting 'Hang Mike Pence!' and got within 40 feet of the vice president of the United States. We know these claims about the vice president's authority were false."
Pence, thankfully, knew it too, and risked the mob's wrath that fateful Jan. 6 rather than accede to the demands of a president gone rogue.
But we may not be as fortunate next time. It is imperative that this process be made explicit, so that there is no question as to what steps must be taken — and which are prohibited — in certifying the electoral count that officially installs the next president.
The proposed reforms are the result of months of solidly bipartisan work, led by Sen. Susan Collins, R-Maine. The group of 16 senators behind the bill, divided roughly in half between Democrats and Republicans, have pushed for sensible changes that would make explicit the vice president's limited role and protect the will of voters by ensuring that determinations made at the state level are respected by Congress.
This includes an important change that raises the threshold for senators who would raise objections. Just before the hearing, Klobuchar told an editorial writer that under the existing act, all it took was the objection of "one senator and one House member to create a delay" that would bring the counting process to a halt and begin deliberations of the objection. The proposed bill, she said, changes that to a full 20% of the members of each chamber. This retains the ability to register legitimate concerns but dramatically curtails the options of those attempting mischief.
Klobuchar, who laid much of the initial groundwork for electoral count reform in February with Democratic Sen. Dick Durbin of Illinois and independent Sen. Angus King of Maine, said the bipartisan group seeing it through has produced a bill that makes other important changes. It lays out a procedure for federal court review of challenges; it would promote a more orderly transfer of power with clear guidelines as to when an incoming administration can receive federal resources.
Recall that Trump's stubborn refusal to accept the results of the election led to his administration holding up funding and resources that hindered President Joe Biden's transition process, forcing Biden to crowdsource his transition at one point.
The bill also would require states to appoint electors on Election Day, except in the case of natural disaster or other extraordinary circumstances. Congress would also be mandated to count those electoral votes that courts had determined complied with state and federal law. That should go far to limit shenanigans with "fake electors" or other obstructionist attempts to delay counting.
"The cornerstone of our democracy is the peaceful transfer of power," Klobuchar told an editorial writer. The old law, she said, was "legally ambiguous and confusing. We must make sure the chaos of Jan. 6 never happens again. Updating this antiquated 1887 law is part of that."
Is there more that could be done? Certainly. Noted Harvard constitutional scholar Laurence Tribe, together with Erwin Chemerinsky, dean at University of California, Berkeley law school and Dennis Aftergut, a former federal prosecutor, argued in a recent Washington Post commentary that while the proposed reforms represent "an excellent beginning," other, even more stringent steps — including broader protections of voting rights — will be required to protect democracy.
That may well be, and the Star Tribune Editorial Board has long stood in support of better-protected voting rights. But this is a solid bill that makes needed changes, with strong support in both parties in the Senate, including that of the majority and minority leaders. It is heartening to see leaders on both sides step forward to ensure the transfer of power is never again disrupted.
