Democrats, don't reject GOP offer to fix electoral count law

This post by ERN Executive Director Kevin Johnson originally appeared on The Hill. Photo by Kelly Sikkema on Unsplash.

With Jan. 6 dominating headlines last week, Senate Republicans raised a topic they are not often associated with: election reform. Minority Leader Mitch McConnell (R-Ky.), Republican Whip John Thune (R-S.D.) and others proposed fixing the Electoral Count Act (ECA), the archaic law governing the count of electoral votes in Congress.

Senate Democrats quickly dismissed the overture as a “diversion” intended to derail their voting-rights-centered Freedom to Vote Act. In a Washington Post op-ed, prominent democracy advocates derided prioritizing ECA reform as “making a mockery of our democratic governance.”

While healthy skepticism of GOP motives is certainly justified, Democrats are wrong not to take up the offer to fix the ECA. Voting rights are important, but the rhetoric behind prioritizing the Freedom to Vote Act misrepresents state laws the Act would overrule, none of which poses as great a threat as the ECA. Also, there’s no apparent reason Democrats could not pursue both in parallel.

ECA reform should prioritize the provision – termed “a loaded weapon” by one scholar – that allows state legislatures to name presidential electors on their own if the state “has failed to make a choice” via a popular election. In future elections there could well be partisan officials willing to exploit this loophole to subvert the popular will. It might take as little as a Trump loyalist secretary of state refusing to certify results to give state legislatures pretense to claim a failed election and name their own electors.

Among other reforms, a revised ECA should ensure that once a state has held an election for president, its electors are named based only on the results of that election. Rules for all other elections don’t allow failure to be an option. If disputes or emergencies arise, states address those problems until a winner is determined. Congress should require they do likewise for presidential elections, albeit within a more compressed timeframe.

The irony here is that legislative change of election results is said to be a key risk in GOP bills the Freedom to Vote Act would fix, but no such provision has become law. Bills were introduced in several states allowing legislatures to name their own electors, but none have passed.

You wouldn’t know that from coverage and commentary about the state election laws. For example, a recent New York Times editorial claimed that “nearly three dozen laws have been passed that empower state legislatures to sabotage their own elections and overturn the will of their voters.” A Washington Post op-ed deriding ECA reform points to 34 new laws passed from “bills that would restrict the vote or give legislatures the power to disregard it entirely.”

Both pieces reference databases and research reports to support those claims, but those sources make clear the bills to overturn results have not become law. They also document other facts regularly ignored by commentators: that new laws improving voting access significantly outnumbered restrictive bills in 2021, that some red states have improved access and some blue states restricted it, and that some bills counted as restrictive make relatively minor changes, like Iowa’s reduction of early voting from 29 days to 20.

The overall pattern of GOP legislation is certainly concerning, not least because these laws draw justification from false claims of fraud. But editorials and op-eds that misrepresent the laws’ content to magnify Republican malfeasance are counterproductive.

Voter access is one area where the U.S. has made improvements in recent decades. The country is ahead of most democracies in vote-by-mail and early voting and has comparatively lenient voter ID requirements. Although states can and should do more, particularly on voter registration, voter access is not our existential threat.

Republican support for the “Big Lie” has seriously damaged our democracy. But most other critical problems derive not from recent GOP legislation but from long-established institutional flaws that both parties have abetted. Redistricting controlled by partisan legislatures; the absence of independent election administration; and divisive winner-take-all voting, particularly for presidential electors, are all serious structural faults made vastly more dangerous by hyper-polarization.

The ECA mechanism for the count of electoral votes is another such flaw; it is indeed a loaded weapon we must disarm.

As election scholar Rick Hasen wrote recently, the structural problems with our democracy won’t be solved by Democrats going it alone. Despite all that happened in 2021, Democrats should take up the GOP offer and try to advance bipartisan reform to the Electoral Count Act.

Kevin Johnson is executive director of Election Reformers Network.