This post by By Kevin Johnson originally appeared on TalkingPointsMemo.
If the stars align, Congress could soon pass a much-needed overhaul of the Electoral Count Act (ECA), the 19th-century law governing presidential electoral-vote counting, whose ambiguities helped spawn chaos on January 6th. In pushing to reform the ECA, a bipartisan group of senators is acknowledging a dangerous new reality: that any ambiguity in election law, any hint of an opening, could be exploited in this perilous era for democracy.
The same reality threatens another arcane election procedure: certification of results at the state and local levels, a previously routine process now emerging as a stage for electoral defiance. As with the ECA, our current system is vulnerable to manipulation by partisans and extremists that could dangerously undermine election results, voter trust, and civic peace.
After votes are tabulated locally, state election laws designate an individual or board to confirm the totals add up and to certify victory for the winning candidate. A new Election Reformers Network (ERN) analysis finds that in most states, political parties play a major role in selecting the people responsible for certification. That role is now creating a significant risk of subversion.
At the state level, 39 states give partisan-controlled boards or partisan officials exclusive control over certification, and every state except for Hawaii involves party-nominated or partisan-elected or -appointed figures in some manner in the process. By contrast, a parallel ERN study finds that almost all of our peer democracies limit the role of political parties to observing the process and bringing challenges in court. The finalization of results in these democracies is handled by the same (usually nonpartisan) professionals who run the election itself.