Despite Sens. Joe Manchin and Kyrsten Sinema reiterating their opposition to reforming the Senate filibuster rule this week, even for fundamental voting rights in order to save American democracy from the enemies of democracy, Republicans appear suddenly fearful that Democrats’ voting rights bills could pass.
There is a sudden flurry of interest this week from Republicans and in op-eds about reforming the Electoral Count Act of 1887, as an alternative to the Democrats’ voting rights bills. This appears to be a coordinated effort.
Make no mistake, this deeply flawed, poorly written law needs to be reformed. It was enacted ten years after the disputed 1876 presidential election, in which several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock for weeks (ending with Republicans abandoning Reconstruction in exchange for the presidency, and allowing Jim Crow segregation in the South for almost a century). Close elections in 1880 and 1884 followed, and again raised the possibility that with no formally established counting procedure in place, partisans in Congress might use the counting process to force a desired result.
The obvious solution would have been to amend the Constitution to eliminate the antidemocratic Electoral College for presidential election by the popular vote, just like every other elected office. This remains the correct solution today, but such an amendment has no chance of being ratified in our current hyper-polarized political climate, in which Republicans can only win the presidency with the existence of the antidemocratic Electoral College.
Politico reports, McConnell cracks door to Electoral Count Act reform:
Mitch McConnell is signaling he’s open to reforming the Electoral Count Act, one year after a mass of Republicans objected to certification of President Joe Biden’s win ahead of an attempted insurrection.
Democrats are pursuing more sweeping election reforms and federalization of elections, but some lawmakers in both parties are also suggesting there may be more modest reforms that could pass on a bipartisan basis. Centrist Obstructionist Democratic Sens. Joe Manchin and Kyrsten Sinema both endorsed pursuing work on the Electoral Count Act on Wednesday, as did a number of Republican senators.
The biggest move came from Senate Minority Leader McConnell, who Democrats theorize (correctly) is merely trying to distract from their work on far more comprehensive election reform. Still, the GOP leader said in a brief interview that he would be open to entertaining changes to the 1887 law, which allows members of Congress to dispute election results.
“It obviously has some flaws. And it is worth, I think, discussing,” McConnell said Wednesday.
* * *
Both Manchin and Sinema said Wednesday that they were interested in using the Electoral Count Act reform as a springboard to putting together a bipartisan bill. Manchin said it was a “good start, at least they’ve got people talking now.”
“Senator Sinema continues to believe bipartisan action is needed to strengthen our democracy and has been in constant contact with colleagues in both parties on this and other potential areas of common ground,” said John LaBombard, a spokesman for Sinema.
[Sen.] Schumer scoffed at the possibility of a small-ball deal on Wednesday, the day before the Jan. 6 anniversary.
“The Electoral Count Act [reform] says you can rig the elections anyway you want and then we’ll count it accurately,” Schumer said in an interview. He said he has “very little hope” for a bipartisan deal that includes the more comprehensive reforms his party is seeking to campaign finance and voter access. “We’ve tried for four months and got no support.”
Other progressives share Schumer’s view, with some viewing it as a distraction from their broader goals of expanding ballot access. Sen. Elizabeth Warren (D-Mass.) laughed when asked about Republicans’ stated openness to reform.
“Put your money where your mouth is. Put something on the table and let’s vote,” Warren said. “I want to see something. I’m not off to chase those rabbits until somebody has shown some real detail.”
Mitch McConnell’s comments come just days after after op-eds from election law experts, like this one in the Washington Post. How Congress can fix the Electoral Count Act. Coincidence? I think not.
Not all election law experts agree. See, Efforts to Trump-proof presidential certification crash into congressional realities (excerpt):
Experts are split on whether any Congress can pass a law that would dictate how its successors certify presidential elections. Typically, the House and Senate have the constitutional power to set their own rules, which can be changed at will. Attempting to legislate against this would be unconstitutional. But the Electoral College certification is so significant that many constitutional scholars say it overrides that congressional prerogative.
Still, their view is, practically speaking, irrelevant. What matters most is how leaders of the Congress elected in 2024 and future presidential years behave. They’re not beholden to adopt the prevailing view of the scholarly community, and congressional leaders often don’t.
Some of Trump’s closest allies, including a few lawmakers, spent months after his 2020 defeat crafting legal theories that the Electoral Count Act is unconstitutional, urging then-Vice President Mike Pence to ignore it in a bid to keep Biden from the presidency. If a future Congress decides the Electoral Count Act can’t govern the Jan. 6 certification, these fringe theories would serve as a blueprint — and there’s little recourse to overrule them.
Election law super lawyer Marc E. Elias warns:
https://twitter.com/marceelias/status/1478513087930114052
Marc E. Elias then explains what this sudden flurry of interest in the Electoral Count Act of 1887 is really all about. How the GOP Will Try To Subvert Our Elections:
We are one, maybe two, elections away from a constitutional crisis. More than a year ago — before Election Day — Donald Trump made clear that he would not accept the results of free and fair elections if he did not win. Too few people paid attention, discounting it as the ravings of a soon-to-be failed candidate. In the days following the November 2020 election, Trump and his allies executed a plan to subvert the election results. While they failed, Republicans learned from the experience and are prepared to try again. The future of our democracy rests on whether those committed to free and fair elections will prepare as well.
Immediately following the insurrection on January 6, Republican state legislatures began laying the groundwork for 2022 and 2024. They enacted new voter suppression laws optimized to disenfranchise Black, brown and young voters. They created false narratives of election irregularities and rallied their supporters around the Big Lie. Most recently, they began using their power in the redistricting process to ensure Republicans control the U.S. House over the next decade.
Meanwhile, Democratic efforts in the states have been more limited. Where they control state power, Democrats have not expanded voting rights at the same pace as Republicans have restricted them. New York still has many restrictive voting laws, including a ban on providing food and water to people waiting in line at the polls. Virginia requires an ID to vote in person and a witness signature to vote by mail. Colorado, which prides itself on its vote-by-mail law, rejected 29,000 mail-in ballots, two-thirds of which were from voters under the age of 35.
At the federal level, Democrats have proposed two pieces of significant voting rights legislation, the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Together they would rival the magnitude of the 1965 Civil Rights Act, yet neither has prospects for success as long as the Senate’s filibuster rule applies.
Facing this grim reality, some have begun to urge Congress to ignore voter suppression and focus exclusively on the potential for election subversion in 2024. Specifically, they obsess over the outdated and imprecise Electoral Count Act — the process by which states select and Congress certifies presidential electors. While no one questions that this Act needs reform, the idea that we can fix democracy simply by revising this one law is simplistic and wrong. It ignores the fact that election subversion begins with the rules used for voting and continues through state certification processes. It also ignores the reality that presidential elections are not the only ones being targeted for subversion.
This misguided effort ignores the fact that voting rules that maximize participation result in fewer disputed outcomes, while complex and restrictive rules create a larger pool of disputed ballots that can be used to justify post-election challenges. Republicans learned from 2020 that the absence of virtually any fraud was a stumbling block to their efforts to overturn elections. Since they cannot force voters to commit fraud, they are redefining the term. Several states, including Georgia, Iowa, Kansas and Texas, have criminalized practices that were previously legal. Some of these laws target voters, whereas other provisions are aimed at election workers. The result is the same. The goal of these new provisions is to manufacture fraud where none exists.
By manufacturing fraud, Republicans create controversy that can be exploited after Election Day by Republican candidates who do not prevail. The faux outrage created by the right-wing echo chamber vilifies election workers and provides excuses for disregarding election results.
Republicans are also deeply invested in making key changes to the vote-counting process. In Georgia and Arkansas, the legislature has given Republican-controlled partisan election boards more power. In Arizona, the Republican Legislature passed a new law transferring much of the power to enforce these rules from the Democratic secretary of state to the Republican attorney general. [The Arizona Supreme Court voided this provision when it ruled against its inclusion in the state budget.] Republicans are also organizing and recruiting “Big Lie” advocates to run county elections and staff local election boards.
Republicans know that the single point of greatest vulnerability for election subversion is the state certification of election results. And each of these changes, from making voting more difficult to ensuring that those who count votes are more partisan, provides an excuse for Republican election officials to refuse to certify election results.
A certificate of election signed by the secretary of state and governor is the golden ticket to a seat in the House or Senate. Without a fully executed certificate of election, Senate rules and House precedent provide no simple way for a member of either chamber to be seated. A certificate of ascertainment signed by the governor determines which presidential candidate’s electors meet as a part of the Electoral College.
If Georgia Governor Brian Kemp and Arizona Governor Doug Ducey had refused to sign their states’ certificates of ascertainment, President Joe Biden would have faced a difficult path to have his electors in those states recognized. Had those two governors also refused to sign certificates of election for the three senators and eleven Democratic members of Congress elected in 2020, Democrats would have likely been in the minority in both the House and Senate.
It would be troubling enough if election certifications could be sabotaged by governors or secretaries of state. Republicans are already fielding candidates for those offices who would likely block the certification of free and fair election results they do not support. But, as Republicans demonstrated in 2020, they know how to target vulnerabilities in the system below that level.
Consider what nearly happened last year in Michigan.
The 2020 election results in Michigan were not especially close. President Biden won the state by 150,000 votes, while Gary Peters won reelection to the Senate by 90,000 votes. Given the margins and the fact that both the governor and secretary of state of Michigan are Democrats, Republicans knew that they would have no luck convincing the officials not to certify the presidential and senatorial election results.
This forced Republicans to look further down the line in the Michigan certification process.
In Michigan, official election results originate at the county level. In every county, a bipartisan canvassing board is responsible for collecting the results from the towns and precincts, double-checking them to make sure there are no obvious tabulating errors and then sending those results onto the state for compilation.
Under pressure from the Republican Party, the Republican members of the Wayne County Board of Canvassers initially refused to certify the election results in the state’s largest county for no legitimate reason. It was only after this became national news and pressure mounted that they reversed course and agreed to certify the county’s results to the Michigan State Canvassing Board.
Undeterred, Republicans launched an intense campaign to pressure the two Republican members of the statewide bipartisan board to refuse to certify the results. Again, the relentless pressure from the Republican Party had an impact — one of the two Republican members refused to certify the results by abstaining. Luckily, the other Republican did not. The results were certified and sent on to the governor and secretary of state, who then signed the certificate of ascertainment for president and certificate of election for the Democratic candidate for Senate.
There are steps we can still take to protect our democracy — that we must take to protect our democracy — but every day that passes brings us one day closer to a crisis. We cannot wait until 2024 to address this problem. Given the opportunity, Republicans will deploy these tactics to win control of the House and Senate in 2022.
We must begin by honestly acknowledging the scope and complexity of the problem. Pundits and law professors cannot solve this in a sound bite or a law review article. There are no simple fixes or silver bullets. The fight against election subversion is ongoing and multifaceted. We must remain vigilant and proactive in detecting and combating these threats using every tool available, including legislation, public pressure, organizing and litigation.
Critically, we must also resist the advice to disconnect the fight for voting rights from the fight against election subversion. Subverting an election is made easier by confusing and restrictive voting rules. When the process of voting has been criminalized, manufactured claims of fraud will give an easy excuse to those who seek to overturn the results. Anyone who suggests that congressional Democrats pare back the protection of voting rights to focus on election subversion neither understands the problem nor Republican motivation and strategy.
Additionally, we need to recognize that extolling and protecting election officials’ autonomy can be dangerous. We must reject efforts to conflate the interests of election administrators and the interests of voters. When enacting new laws and policies, we must focus on voters while being skeptical of election officials’ claims of inconvenience or secrecy. Some election workers will do the work of democracy. But others will try to subvert it. We cannot build a system that lionizes all election officials and fails to provide the tools to remove those who are undermining the will of the electorate.
For its part, in addition to expanding and protecting voting rights, Congress must reform the state election certification process.
Congress should require — for federal elections at least — that states certify their elections via a three-person certification commission that is comprised of the state’s chief justice, the justice who most often voted contrary to the chief justice in published decisions of the state supreme court during the year prior and a third justice to be chosen by those two justices. This certification commission would be responsible for reviewing the results, tabulations and underlying election records to ensure that the final certified results are accurate. The signatures of at least two of those commission members would be required on the certificate of election to have a binding effect.
Such a law is essential to reducing the chances that election certifications are blocked by partisan officials acting in bad faith.
Congress must also clearly spell out that the role of canvassing boards and state officials in performing their duty to certify elections is ministerial. It must explicitly limit the ability of those officials to rely on any information or allegations other than the actual election returns from the precincts and counties. And, it must provide a clear private right of action for candidates to sue election officials who fail to perform their duty.
Finally, we must invest in electing Democrats to offices responsible for election certification. This means spending more money to elect Democratic governors, secretaries of state and county officials. It also means recruiting good people to serve as poll workers and on local and county canvassing boards.
I have no doubt that we are only one, maybe two, elections from a constitutional crisis. My fear is that those who support democracy are not as prepared or as focused as those who seek to subvert it. But, I hope I am wrong. Now is the time to act.
We should all be deeply disturbed by prima donna Democratic divas Joe Manchin and Kyrsten Sinema immediatley jumping on this Mitch McConnell distraction after reiterating their opposition to reforming the Senate filibuster rule in order to pass fundamental voting rights legislation to save American democracy from the enemies of democracy. They are not just appeasing the enemies of democracy, these Vichy Democrats are collaborators with the enemies of democracy. History will condemn them.
Historian Michael Beschloss on upholding democracy in 2022: “If we lose our democracy this year, we are unlikely to get it back during our lifetimes. I can’t think of anything more important than that.”
If we lose our democracy, 2022 could be the year we lose it. Americans, please do not let this happen. pic.twitter.com/RREkXs9jkn
— Michael Beschloss (@BeschlossDC) January 2, 2022
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Fred Wertheimer and Norman Eisen explain, “Fixing the Electoral Count Act is no substitute for real election reform”, https://www.washingtonpost.com/outlook/2022/01/06/eca-reform-voting-rights/
With the Senate finally scheduling action to address the national epidemic of voter suppression and election hijacking laws, Minority Leader Mitch McConnell (R-Ky.) and others in his party have suddenly found an alternative election reform they are signaling they will consider instead. They suggest reforming the Electoral Count Act (ECA), the statute that guides congressional handling of presidential elections once every four years.
We should not fall for this bait and switch. We strongly support ECA reforms — but they are no substitute for addressing the larger election assault that is hitting every voter in every election. Indeed, ECA reform is meaningless without a fix for those more fundamental problems.
It’s not just McConnell who is suddenly open to election reform. Senate Republican Whip John Thune (S.D.) just announced that the GOP could consider ECA fixes. The otherwise anti-reform Wall Street Journal editorial page took the same line. On “Meet the Press,” conservative commentator Jonah Goldberg contended that reforming the ECA would mean “dealing with the real problem.” Pieces in other prominent publications have sung the same tune. And news has now emerged of bipartisan discussions of the topic.
[ECA] improvements are certainly needed, such as clarifying the exact role of the vice president in certifying election results or increasing the threshold to challenge a state’s electors from current law, which allows just one senator and one representative to object. But no version of them will address the comprehensive predations of partisan state legislatures driven by former president Donald Trump’s Big Lie that the 2020 election was stolen. Passing broader legislation would. Protecting the fundamental right to vote is not a partisan act.
In Florida, for example, the Freedom to Vote Act (FTVA), which Senate Democrats have sponsored, would make moot a new law that institutes onerous ID requirements to even request a mail-in ballot. Such requirements disproportionately affect voters of color. In Texas, the bill would preempt a blanket ban on ballot drop boxes, which are essential for densely populated, heavily minority jurisdictions. In Georgia, the legislation would counter a new provision that outlaws giving food and water to voters waiting in line; such lines are most common in counties like Fulton, DeKalb and Cobb, where voters of color predominate.
Meanwhile, the House-passed John Lewis Voting Rights Advancement Act would torpedo future voter suppression laws by requiring certain states and local jurisdictions to obtain pre-clearance from the Justice Department for any changes to voting laws.
Changes in how Congress handles the electoral vote count around Jan. 6 every four years wouldn’t speak to any of that. Nor would they address what is perhaps among the worst of the recent state predations: election hijacking. Last year, 262 bills introduced in 41 states would award undue power to state legislatures or hyperpartisan actors to interfere with election administration; 32 of them are now law in 17 states.
The measures introduced or passed do things such as intimidate election officials by allowing bogus “audits” of nonexistent fraud, criminalize routine election administration and allow legislatures to replace election boards that refuse to bow to partisanship. In the worst-case scenario, some proposals permit the state legislature to determine who won an election, irrespective of the voters’ choice.
The voting rights package that the Senate is attempting to move in the coming weeks would respond to all of that — forcefully. The FTVA mandates that states use paper ballots for voting for federal office, creating an indisputable record of the vote in case a state legislature attempts to question the results via a phony audit. The bill would protect election officials from dismissal without cause. It would recognize a federal right to vote so that undue state legislative meddling can be challenged in court, subjecting state-level election processes to federal judicial scrutiny and allowing redress against individuals or legislatures that attempt to subvert the duly exercised will of the people.
The extent and seriousness of voter suppression and election hijacking at the state level illustrate the foolishness of substituting reform of the Electoral Count Act, which does not purport to offer a solution to these problems, for more sweeping proposals that do. ECA reform is welcome after or even as part of a bigger bill — but not instead of it.
The fact that ECA reform might be bipartisan — that some Senate Republicans might be willing to join Democrats in admitting the existence of issues here — is no reason to discard the larger reform package.
[N]or should we heed those who warn that the filibuster will block the larger voting rights package but not an ECA fix. The filibuster rules have been modified more than 160 times to make the Senate work better. They were changed again just last month to pass an increase in the debt ceiling. Surely establishing a federal democracy floor — a set of minimum standards for federal elections — is no less important. The answer to critics on this point is that we must try for another modification to protect our democracy, and key senators are discussing just that.
For all these reasons, no one should fall for the ECA bait and switch … We need voting rights reforms first and foremost. Without them, ECA reform makes a mockery out of our democratic governance.