Fixing the Electoral Count Act of 1887 before its confusing and arcane procedures can cause a constitutional crisis in 2024 is the sort of chore that is best done quietly, beyond the glare of partisan politics. Though the ECA is now known as a key element of Trump’s botched 2020 election coup, as he tried to exploit its ambiguities to stop Joe Biden’s inauguration, both major political parties should readily support a fix. The reasons are obvious if you think ahead to what might happen three years from now.
Whatever you think Mike Pence could have or should have done on January 6, 2021, there won’t be a Republican helming the joint session of Congress in January 2025, when the next presidential election results are formalized: That honor will go to Kamala Harris. Republicans should certainly want to clarify that she (or any future VP) cannot just recognize her own ticket’s electors regardless of the popular vote in the states they are from, and cannot “send the election back to the states” if the outcome is adverse to her cause.
Similarly, mischief at the state level is not some sort of prerogative of one party or the other. Democrats are quite reasonably worried about voter suppression in 2024 as Republican legislators race to create potholes on the road to the ballot box, and Trump allies aggressively seek to get control over the state and local election offices that call the shots in disputes over voter rolls, mail-ballot procedures, voter-ID adjudications, and many other fraught topics. But what if a Democratic legislature or governor chooses to “go rogue” and certify Biden electors regardless of the popular vote, on grounds that the election was not administered fairly? There’s no particular reason to think it would happen, but the atmosphere of lawlessness surrounding Trump’s attempted election coup might convince Democrats the system is broken so completely that it’s just a matter of which party has the superior strength of will to seize power.
As Matthew Seligman, an attorney working on ECA reform, put it to me in an email: “The law doesn’t talk about political parties. It doesn’t mention Democrats or Republicans or anyone else for that matter. But it does contain logical holes big enough for any partisan to drive a truck through.”
The problem right now is that the Republicans quietly working on ECA reform are under attack from Mar-a-Lago. Trump has issued two statements so far this week blasting the very idea of fixing the ECA. The first called those working on the project “Wacky Susan Collins” and “RINO Republicans.” The statements make almost no sense, even from a MAGA point of view. He does not seem to understand that far from arguing that the ECA authorized Mike Pence to “overturn the election,” as he baldly put it on January 30, his own lawyer in the crucial moments prior to January 6 argued that the entire statute is an unconstitutional abridgment of powers granted the vice-president under the 12th Amendment and state legislatures in Article II. Trump also doesn’t seem to get that Pence as vice-president is a thing of an increasingly distant past, and that he is apparently fighting to give extraordinary powers to Kamala Harris. Actually, Trump doesn’t seem to even know the name of the law he is fighting to preserve in its current screwed-up state, calling the ECA the “Electoral College Act” in one statement.
Even though his furious arguments are incoherent, he’s getting the desired effect from his most faithful satraps on Capitol Hill, as Politico reports:
In interviews with a dozen GOP senators over the past week, [Ted] Cruz (R-Texas) came out most forcefully against the group’s ongoing work to raise the bar for challenging elections in Congress.
“I don’t think a political stunt designed to go after President Trump is a worthwhile expenditure of time and energy,” Cruz said.
And [Josh] Hawley (R-Mo.) warned senators to be “really careful about messing around with a law that’s been on the books that long, that’s governed that many elections.”
And even a senator high in leadership who isn’t especially beholden to Trump wants to slow-walk the ECA talks to punish Democrats for their voting-rights push in January:
“I don’t think there’s any particular rush. These guys tried to blow up the Senate two weeks ago. Rewarding them by giving a win on something … is not something that some of our members are crazy about doing right away,” [John] Thune said.
If Congress keeps waiting to perform this chore and Trump keeps raging against it, ECA reform could become one of the items on his growing list of litmus tests for Republican politicians. But Trump’s allies should know better than anyone that he has no specific objective in trying to blow up ECA reform other than preserving the chaos in which he thrives; he’s a racehorse who always prefers a muddy track. If Republicans don’t want to tempt Kamala Harris, Democratic governors and legislators, and those terrified of a Trump restoration into turning the ECA to their own partisan purposes, they should ignore the former president and fix the problem before it becomes their — and perhaps even Trump’s — undoing.
