A bipartisan House bill to reform the Electoral Count Act, which explains how presidential votes are counted, would be an improvement over an already helpful Senate proposal to fix the antiquated, convoluted law.
The existing law’s complications and inadequate draftsmanship created room for President Donald Trump’s team to concoct alternative but bogus paths to claim victory in the 2020 election even after states duly certified more than enough electors for Joe Biden to win.
A bipartisan Senate group in July released its draft of a bill to fix the problems, but although it would be a huge improvement over the current ECA, it still left some contradictions and loopholes (although far fewer than the ones that plague the existing law). The House bill introduced this week, co-authored by Republican Liz Cheney of Wyoming and Democrat Zoe Lofgren of California, fills in almost all gaps with admirable and sensible specificity, with negligible grounds for confusion.
The so-called Presidential Election Reform Act would make six major clarifications or improvements in the ECA, along with a number of minor ones. Among the major ones, it would clarify the reality that even the ECA, despite its convoluted language, leaves no room for the vice president to exert discretionary power to decide which electoral votes to count. It would specify the limited grounds, rather than open-ended ones, on which members of Congress could object to the legitimacy of any particular electors. It would require that objections could be considered only if one-third of either chamber of Congress agree to join the original challenge, rather than allowing a single member to gum up the works.
It would provide what should be obvious, but which some troublemakers dispute, namely that state legislatures responsible for setting up their states’ election methods cannot change the rules or results after Election Day. In other words, the legislature cannot choose a winner of its state’s electoral votes that’s different from the one chosen according to the state’s pre-existing laws.
Another entirely wise provision would allow, under extremely limited and well defined circumstances, for an extension of voting time due to a truly catastrophic event such as a hurricane or terrorist attack. Remember that the terrorist attack on 9/11 occurred on a mayoral Election Day in New York City. This bill would make it clear, rather than leaving it to assertions based on extra-legal exigencies, that such occasions would justify the presidential vote in a very specific location to be moved back a few days.
Finally, this bill would establish a very explicit process for expedited judicial review of any challenges to or controversy about an individual state’s electors — and make clear that courts, not a state’s governor acting under his own discretion, are the ultimate interpreters of law and fact with regard to election results.
These are all salutary suggestions. So too are almost all the other provisions in the bill, although a nitpicker (such as I) might recommend a few minor tweaks. Also, one small section is gratuitous — not harmful, so I won’t detail it here, but unnecessary — and another sentence needs a definitional tweak.
Right now, House leadership appears determined to hold an extremely quick vote on this excellent bill. There’s no need to do so. The House should hold at least one hearing, thus allowing critics to vent and friendly amendments to be offered, rather than give a procedural excuse for some ill-motivated members to oppose it. In short, regular order is better than appearing to cram a bill down people’s throats.
Still, this bill offers superb reforms. With a few tiny tweaks, it abundantly merits passage.
