Democratic and Republican lawmakers in Washington are pressing forward with plans to rewrite the rules under which Congress counts electoral votes in presidential elections, to prevent another attempt to overturn legitimate results, which happened when former President Donald Trump refused to accept his loss to Joe Biden in the 2020 contest.
The effort is a bipartisan one, with members of both parties in agreement that the rules need to change. However, there are some disagreements about precisely how to reform current law, which was put in place by the Electoral Count Act of 1887.
The push to rewrite the rules for counting votes comes at a time when the integrity of elections across the country is under challenge. Large numbers of mostly Republican candidates for important state offices, as well as the House and Senate, have refused to say they will abide by the results of the elections scheduled for November. Many have suggested that in specific races, the only way a Republican candidate can lose is through voter fraud.
A large number of Republicans continues to insist, incorrectly, that the 2020 presidential election was stolen from Trump. Republican candidates in swing states that Biden won in 2020 such as Arizona and Pennsylvania have said they would not have certified Biden’s victory if they had been in office at the time. Biden’s victory in both states has been confirmed by post-election audits.
Others have said they would be open to retroactively “decertifying” Biden’s victory — something that has not been done before and which would face major legal challenges.
Threat to democracy
Some experts have been raising the alarm for most of the past two years, warning that the willingness of elected officials to set aside the results of an election is a mortal threat to the United States’ system of government.
“We've never faced this before in American history, where a large faction of one of the two major parties seems bound and determined to declare elections that they lose to be fraudulent,” Larry Sabato, director of the University of Virginia’s Center for Politics, told VOA. “And they are preparing the way legally, to be able to do it by electing individuals who will have a say, in various respects, over the election results.”
He added, “If this becomes the norm in one of the two major parties, you cannot have a functioning democratic system.”
While successful and bipartisan reform of the Electoral Count Act would not eliminate all the ways in which partisan actors could try to overturn election results, it would eliminate one of the justifications used by Trump’s supporters after the 2020 contest.
2020 count disruption
Under U.S. law, during a presidential election, voters in each state choose a slate of “electors” who then cast their votes for president. The candidate who receives a majority of the 538 electoral votes wins the presidency.
At a set time after a presidential election, Congress assembles to formally count the electoral votes. This is where things became complicated in 2020, as supporters of Trump insisted that Vice President Mike Pence, who presided over the Senate during the counting, had the unilateral authority to refuse to count the votes from specific states.
In the end, Pence, in agreement with most legal authorities, decided he did not actually have that authority. The count went forward, until it was interrupted by a mob of Trump supporters who stormed the Capitol building and forced members of Congress to flee. Lawmakers later returned and completed their task.
The bills currently being considered in Congress would eliminate ambiguous language from the 1887 act, making it clear that the vice president’s role in the vote counting is ministerial — meaning that he has no discretion to choose what votes get counted.
In the Senate, a bipartisan group of lawmakers led by Republican Susan Collins and Democrat Joe Manchin spent much of the year hammering out a proposal to rewrite election rules.
In the House, the bill with the most chance for success appears to be a piece of legislation recently introduced by Republican Liz Cheney and Democrat Zoe Lofgren.
Both bills would place clear limits on the authority of the vice president during the counting of votes, but they differ in other particulars.
Currently, it only takes the objection of one member of the House and one senator to begin debate on whether lawmakers should decline to accept a specific state’s electoral votes. However, while the Collins-Manchin bill would raise the bar to one-fifth of the votes in each chamber, the House version sets the threshold even higher, at one-third of all members.
Both bills also have provisions covering the possibility that a state fails to submit its electoral votes, and give candidates the right to seek relief in federal court if a governor refuses to transmit election results to Congress. However, they differ on the question of how to define a “failed election” in a specific state — that is, an election that fails to generate a result.
The House bill requires that the vote be interrupted by a natural disaster and that the failure of the election be certified by a federal judge. The Senate bill is less specific about what constitutes a failed election.
Prospects of passage
In general, Democrats are more supportive of Electoral Count Act reform than Republicans. In the House, that is not a major impediment to passage, because Democrats hold an outright majority. In the Senate, though, a reform bill would have to win at least 10 Republican votes and unified Democratic backing in order to advance and ultimately pass the chamber.
“The question is whether these two different versions can be reconciled in a way that 10 Republicans in the Senate will accept,” William A. Galston, a senior fellow in the Brookings Institution’s Governance Studies program, told VOA. “If the Senate bill is as far as the Republicans are willing to go, will the House Democrats accept the Senate version as better than nothing?”
He added, “I've heard seemingly persuasive arguments on both sides, but my own position is this: The Senate version would be significantly better than nothing. That is, it would represent a significant advance over the status quo. …This is no time to let the best be the enemy of the good, or at least the good enough.”
Michael Thorning, director of the Structural Democracy Project at the Bipartisan Policy Center, told VOA that the overall similarity of the bills, and the fact that both have bipartisan support, suggests that there is a good chance lawmakers will find some agreement.
“There is not just bipartisan agreement, but I think there is also a bicameral agreement that Congress needs to act on this, and it needs to act soon,” he said.
Thorning noted that while the proximate cause of the drive to reform the way electoral votes are counted is Trump’s effort to overturn the 2020 election, that was not the only challenge to an election’s legitimacy in recent memory.
In 2000 and 2016, the Democratic presidential candidate won the national popular vote but lost in the Electoral College, a result highly frustrating to members of that party, but one that is nonetheless well within the bounds of U.S. election law.
In 2004, Democrats claimed that election irregularities in Ohio might have unfairly tipped that state’s 20 votes to George W. Bush, giving him the margin he needed to defeat his Democratic rival, John Kerry for the presidency.
In all three cases, Democratic members of Congress attempted to hold up the certification of the election by challenging the votes of individual states.
“That speaks to the need to raise the threshold for objections,” Thorning said. “I think the experience of the last few decades is that the threshold is too low, and it makes it too easy for members to launch unfounded, or ‘statement’ objections.”