The human mind is ingenious. It can create towering works of art and make remarkable scientific discoveries. It is, as we saw in the aftermath of the 2020 presidential election, also capable of inventing new ways to undermine American democracy by abusing our existing election laws, and turning orderly presidential elections into anarchy and chaos.
It’s beyond the ken of lawmakers, or perhaps anyone, to try to sniff out every potential avenue for havoc. But they can fix obvious defects in presidential elections once they have been exploited.
The Electoral Count Reform Act currently before the Senate is an effort to do that, fitting into a long history of legislative action following a breakdown in the existing laws. It’s not a bold reinvention of the American electoral system, but a series of bureaucratic reforms, requiring careful legal craftwork, intended to patch frays and holes in the United States Code. To do that, it updates antiquated language, clarifies contested issues, and streamlines the process to follow if a once-in-a-century political crisis occurs.
The new legislation is not intended as a foolproof fix to avoid future issues — after all, who could have predicted that a mob featuring a man in a Viking costume would storm the Capitol chanting “hang Mike Pence”? But it does eliminate many of the ambiguities exploited by Trump and his allies in the 2020 election and ensures that anyone intent on trying to reverse a presidential election in the future will have to rely on their own ingenuity, and not the road map of 2020.
2020 was not the first presidential election to almost plunge the country into chaos
There have been two elections before 2020 that stretched American institutions to the breaking point.
The first was the presidential election of 1800. Then, under the system originally adopted by the founders, the first-place finisher in the Electoral College became president, and the second-place finisher became vice president. The problem was that political parties had emerged since the Constitution was adopted, and by then, presidential and vice presidential candidates were running as a ticket. The Democratic-Republican presidential nominee, Thomas Jefferson, ended up finishing in a tie with his running mate, vice presidential nominee Aaron Burr, after a miscommunication prevented a single Democratic-Republican elector from dropping Burr from his ballot as planned.
The deadlocked election was thrust into the lame-duck House of Representatives, then controlled by the opposition Federalist Party, for a vote that, for Federalists, meant selecting between the lesser of the two evils. It took 36 ballots, the continued passivity of Burr, and the intervention of Alexander Hamilton in Jefferson’s favor to finally produce a result.
To prevent any repeats of that scenario, the 12th Amendment was passed before the next presidential election. It separated the selection of the president and vice president in the Electoral College.
The 12th Amendment created the basic framework governing presidential elections that is still used today. But it was the election of 1876 that prompted lawmakers to create a framework for how a disputed election is decided.
In that election, Democrat Samuel Tilden and Republican Rutherford B. Hayes both claimed victory in three states: Florida, Louisiana, and South Carolina. There was also a separate dispute over a single electoral vote in Oregon. All three Southern states, where federal troops remained to implement Reconstruction, were riven with claims of fraud and violence. The Electoral College tally sat at 184-165 for Tilden before those states were decided, meaning if Tilden was awarded a single electoral vote from any of those states, he’d become president. But if Hayes won all 20 contested electoral votes in those states, he would win.
Tilden’s Democrats controlled the House, Hayes’s Republicans controlled the Senate, and with no clear legal or constitutional guidance for how to handle such a dispute, there was total gridlock. In an attempt to break it, an Electoral Commission was created to determine who won each state. Five members were appointed each from the House, the Senate, and the Supreme Court, consisting of seven Republicans, seven Democrats, and one independent, Supreme Court Justice David Davis. This set off maneuvering by partisans across the country to game the commission and break the gridlock.
In an attempt to persuade Davis, the Democratic-controlled Illinois state legislature elected him to the Senate. That backfired: Davis stepped down from the commission and was replaced by Joseph Bradley, a Republican Supreme Court justice. Every question before the commission was then decided on an 8-7 vote, with the Republicans and Hayes winning.
This didn’t exactly inspire confidence from Democrats, who howled that the election was being stolen. The eventual resolution was the informal agreement now known as the Compromise of 1877, a deal struck just two days before inauguration that contained key concessions to Southern Democrats in exchange for Democrats accepting Hayes’s victory. They included formally pulling all federal troops out of the South, ending Reconstruction.
In the aftermath of the 1876 fiasco, Congress passed the Electoral Count Act, putting procedures in place to arbitrate future election disputes. Although the language of the legislation is notoriously confusing, the United States avoided a similar crisis for over a century after its passage.
The 21st-century Electoral College breakdown
Ned Foley, an election law expert and professor at the Moritz School of Law at Ohio State University, described the situation in 1876 as the model for what Trump lawyers like John Eastman and Rudy Giuliani were trying to accomplish in 2020 with their plan to manipulate the Electoral College process to reverse Joe Biden’s win. The difference, as he put it, was that “there was a genuine fight and both sides had a plausible claim” that they had won in 1876. In contrast, Trump’s lawyers were “simply willing to fabricate an alternate reality.”
Even before the 2020 election, scholars worried that the Electoral Count Act would not provide sufficient protections if there was a legitimate dispute about electoral returns. The efforts to overturn Biden’s victory showed how inadequate it was even when there wasn’t a legitimate dispute.
The attempts to overturn the 2020 election ranged from efforts to recruit slates of fake electors in states Biden won to the effort to persuade Mike Pence that he could unilaterally toss out electoral votes as president of the Senate. Yet they all exposed potential loopholes in existing law that could be exploited by those seeking to overturn an election. Those efforts could have been successful if undertaken in a more competent manner, or with elected officials who were more inclined to be cooperative.
The fake elector effort was an attempt to trigger an 1876-type crisis by forcing Congress to decide between two competing sets of returns from competitive states. However, the process was so bungled and so lacking in any validity or political support from key players that it did not come to fruition. It’s one thing for fake electors to be backed by a sitting governor or by a majority of a state legislative chamber. This would give them a veneer of plausibility, and Trump’s team did try hard to pressure officials into giving them such support. They largely held out, and in the end, being backed by the MyPillow guy just didn’t have enough political or legal impact.
The other effort to exploit the ECA was the one to persuade Pence to throw out electoral votes. It was a last-ditch effort to unilaterally reject certified electoral votes for Biden from certain states. If pro-Trump electoral votes could not be manufactured, this could at least invalidate enough Biden votes to throw the race into a joint session of Congress.
Foley described a nightmare scenario that he found plausible given there are election deniers on the ballot in a number of key states this year. In his hypothetical, fervent election denier and Trump ally Kari Lake, the GOP gubernatorial nominee in Arizona, wins her race and Republicans end up in control of one chamber of Congress. It would be possible under current law to force the joint session of Congress to accept an election result that would be “contrary to the true vote and contrary to court orders” if a governor like Lake decided to certify a false election result and one chamber of Congress went along.
How the ECRA will patch the holes
The bipartisan proposal put forward by Sens. Joe Manchin (D-WV) and Susan Collins (R-ME) this summer serves to plug a number of the obvious holes in the process. It makes clear that the vice president’s role in the certification of the Electoral College votes is purely ministerial and that the vice president cannot unilaterally toss out electoral votes, as Trump lawyers advocated in 2021.
It also makes it more difficult for a member of Congress to object to an election’s certification and prompt the joint session of Congress to break up to debate individual state returns, as happened twice on January 6, 2021. Currently, an objection from only one member of the House and one senator is required, making it easy to plunge a joint session into gridlock. The bill would raise the threshold for objection to 20 percent of each chamber to make it harder for a single senator — with a legitimate concern, on a whim, or making a political calculation — to throw a wrench into the process.
The proposed legislation also requires states to abide by laws before the election and gets rid of a law dating back to 1845 that could allow states to declare “a failed election,” instead ensuring that the date of the presidential election remains fixed save for “extraordinary or catastrophic events.”
It also puts in place a process for a state to submit a single slate of electors, certified by the governor, to avoid conflicting returns. Most importantly, it also provides for an expedited judicial review process in federal court if things go wrong, such as in the Lake scenario cited by Foley. He noted that this judicial review process is the key aspect of the bill. “The most important thing about the bill is [it establishes that the] basic principle is that what courts decide controls” the outcome, he told Vox.
While establishing that principle is important, the legislation is not perfect. One of the flaws of this process is that “there is always the danger of fighting the last war,” as Rick Hasen, an election law professor at UCLA Law School, told Vox. After all, while this clarifies the role of the vice president in the process, no one seems concerned that Kamala Harris would somehow hijack the certification process in 2025.
There are also various technical aspects of the bill that scholars suggested could be improved that are likely to be added to the bill before it reaches the Senate floor. And while the ECRA doesn’t fix everything, it also isn’t the only proposal.
Reps. Liz Cheney (R-WY) and Zoe Lofgren (D-CA), both members of the January 6 Committee, are also working on House legislation to fix the Electoral Count Act. But the point agreed on by all who want to see election reforms is that something needs to be done. No legislation will perfectly close every loophole and constrain the behavior of every bad actor. But it will make any effort to overturn the election in 2024 significantly more difficult than it was in 2020.
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