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Reform the Electoral Count Act

The lame duck offers Congress a chance to protect future elections.

November 30, 2022

Congress has returned to the Capitol. Such lame duck sessions, after an election but before the new term, are rarely consequential. This one will be. Lawmakers must keep the government funded and continue supporting Ukraine’s struggle against Putin’s aggression. And they must take a critical step for the future of our own democracy: reforming the Electoral Count Act

That’s the creaky 19th century law that sets out procedures for counting electoral votes. It’s complicated, vague, and poorly drafted. That said, for 133 years, it remained a quaint relic. It helped that for nearly all that time, the popular vote effectively determined the presidential winner. Alas, as we all know, in 2000 and 2016, the popular vote loser nevertheless became president because of the Electoral College. It nearly happened in 2004, too, when John Kerry would have prevailed if a few thousand votes had switched in Ohio, even though George W. Bush handily won the popular vote.

Throughout all this time, candidates of both parties respected the voters’ will. The peaceful transfer of power is a hallmark of American democracy. Taking the oath in 1981, Ronald Reagan rightly called it “a near miracle to many of the world’s inhabitants.” 

That honorable tradition ended in 2020 when Donald Trump employed a tortured reading of the Electoral Count Act in his doomed attempt to reverse the election. Trump’s maneuver was illegal, but it revealed the act as a vulnerability. It must be clarified and strengthened to prevent a repeat of 2020. 

A bill pending in the Senate is a significant move in the right direction. It would confirm that the vice president has no power to alter the electoral vote count. It would raise the threshold for how many House and Senate members are needed to object to a slate of electors — currently, it is just one person from each house. It would ensure a judicial remedy if a state government unlawfully refuses to certify election results. And it would prevent state governments from changing rules after an election has been held. 

Happily, this sensible fix has broad bipartisan support — these days, unusual for an election measure. I’m optimistic Congress will act, either passing the bill as a standalone measure or attaching it to a larger piece of legislation. Significantly, Senate Minority Leader Mitch McConnell backs the bill, as do many of his Republican colleagues. It’s the first bipartisan acknowledgment that election subversion is a real threat. 

Of course, this is just a first step to renewing and repairing our democracy. Lawmakers in Congress and the states still must protect the right to vote and thwart gerrymandering. The reform won’t even fully address the poisonous legacy of the January 6 insurrection. Voters last month made clear they reject election lies. Now politicians must respond. Election denialism will be with us as long as large swaths of Republican politicians continue to spread lies about the 2020 results or the security of our elections more broadly. 

But for now, it’s critically important that Congress use the next few weeks to fix the Electoral Count Act. It can’t wait until the divided, and likely divisive, next Congress. Again, let’s heed what Ronald Reagan told us in 1981 about the peaceful transfer of power: “Freedom is a fragile thing, and it’s never more than one generation away from extinction.”