This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
The barriers voters face before casting a ballot have rightly grabbed headlines recently. But there’s a way that tens of millions of Americans could be disenfranchised after voting in the next election that has gone under the radar. As the stirring testimony of the Capitol police officers recedes into our memory, we shouldn’t forget our democracy is still vulnerable to attack.
Of course, it is important to address voting protections, preventing partisan actors from overturning legitimate election results, and creating better physical safeguards, like Capitol security. But we can’t lose sight of what made Jan. 6 a pivotal date. It is the date set by an 1887 law for the counting of electoral college votes — and it was the controversy engineered by Donald Trump over those votes that precipitated the violence. That law — the Electoral Count Act (ECA) of 1887 — is outdated. Congress can take an important step toward restoring Americans’ trust in the integrity of our democratic process by updating an obsolete law most Americans have never heard of, which is full of archaic and unclear language, to provide a clear and fair framework for resolving disputes in the Electoral College.
We narrowly avoided a constitutional crisis on Jan. 6. The question becomes: what can we do to prevent an even worse scenario the next time?
The biggest flaw in the ECA as written is that it makes it too easy for individual members of Congress to try to throw out a state’s results. There is bipartisan consensus amongst election law and constitutional experts that Congress can address this and that it must be done before the 2024 presidential campaign begins. As the American Enterprise Institute’s Kevin Kosar has written, “tightening up the ECA is critical to ensuring states’ lawfully submitted electoral votes are counted.”
In fact, there is a real hero opportunity for a Republican Senator to take this on, since it’s a Democrat, Vice President Kamala Harris, who will preside over the joint session of Congress the next time we count the electoral college votes – in January 2025. It’s true that then-Vice President Mike Pence took the high road on Jan. 6 by correctly declaring he lacked authority to reject state electoral slates lawfully submitted to Congress. However, the American people can’t rely on future vice presidents to do the right thing. The stakes are too high to leave this to chance and the time for action is now, while there is still daylight before the looming 2024 campaign season.
One can start by looking to Senate Minority Leader Mitch McConnell’s actions around Jan. 6 to see a bipartisan path forward. When Sen. Josh Hawley (R-MO) publicly declared he would object to the electoral vote count, it forced McConnell between a rock and a hard place. Congress would either try to override the voters’ decision for the first time in history or honor the people’s decision. The vast majority of Republican Senators understood their constitutional role and voted accordingly.
McConnell made clear that defending our democracy from congressional takeover was not a loyalty test. He said in his floor speech on Jan. 6: “The Constitution gives us here in Congress a limited role. We cannot simply declare ourselves a National Board of Elections on steroids.” He called his vote to confirm the election results the most important in the 36 years he’s served in the U.S. Senate.
Indeed, it’s in McConnell’s interest to avoid delivering that speech again. He can do this by supporting an effort to clarify that Congress’s power is limited to counting electoral votes duly submitted by the states. As he’s acknowledged, anything further would be “incompatible with our Constitution.” Failure to update the ECA would leave the door open to another damaging challenge to the conservative principles of limited government that drew him into public service.
Congressional action to modernize the ECA has nothing to do with support for or opposition to the previous president. It’s about ensuring that voters decide elections, not politicians. With that in mind, modernization legislation should articulate the meaningful but narrow role that Congress, the Vice President and other institutional actors have in counting electoral votes to finalize the outcome of the winner’s electoral college victory. A bill should be produced this fall to update the law’s terminology to provide greater certainty around the rules, timeline and procedures concerning post-election disputes before they reach Congress. These modest but necessary changes are all within the constitutional architecture of the Electoral College in Article II and the Twelfth Amendment of the U.S. Constitution.
Modernizing the ECA is not a partisan issue – removing the risk of a nightmare constitutional crisis is in everyone’s interest. Neither party stands to gain partisan advantage through ECA modernization. We can’t predict which party will be in position to exploit the weaknesses in our Electoral College in 2024 or 2028, or beyond, but Congress can ensure that nobody does.
Trevor Potter is President of Campaign Legal Center (CLC) and a Republican former Chairman of the Federal Commission. He served as General Counsel for John McCain’s presidential campaigns.
Norm Ornstein is a senior fellow emeritus at the American Enterprise Institute (AEI), where he has been studying politics, elections and the U.S. Congress for more than four decades.
