Congress must amend the Electoral Count Act or democracy is doomed

As I told MSNBC’s Ali Velshi on Saturday, we may be one election cycle away from the end of American democracy. This is hard for people to hear. But it’s vital that we somehow come together and reject the revised form of government peddled by the modern Republican Party. Whatever that is, it is not democracy. 

The way forward is to amend the Electoral Count Act. Yet neither H.R. 1 (otherwise known as the For the People Act) nor H.R. 4 (originally named the Voting Rights Advancement Act, but renamed the John Lewis Voting Rights Act a week after Congressman Lewis’s death) address that pivotal statute, which was enacted in 1887 to establish procedures for certifying the electoral votes for president. If Congress doesn’t act soon, even a massive voter turnout of the likes seen during the 2020 COVID-19 pandemic won’t matter.

The problem is not just about the myriad new laws making it harder to vote in this country under the false excuse of election integrity. So far, 14 states have enacted 22 laws restricting access to the ballot, with a total of 389 bills introduced in 48 states in 2021. These commonly-called voter suppression laws make all sorts of mischief, like shortening the timeframe to request a mail-in ballot, making it harder for voters to remain on absentee voting lists each election cycle, limiting the availability of ballot drop boxes, requiring more stringent signature requirements for mail-in voting or ID requirements for in-person voting, reducing Election Day polling place hours, shortening early voting periods, reducing the number or accessibility of polling places, banning the offering of snacks and water to voters waiting in line, eliminating Election Day voter registration, expanding purges of voters from established voter rolls and banning third-party funding of elections. 

But this latest rash of anti-voting laws goes even further. A number of bills would expand the powers of “poll watchers,” enabling partisan onlookers to intimidate and even harass election officials and voters at polls and ballot-counting locations — and hamstringing election officials’ ability to stop them. Some states have introduced laws that would punish state election officials with criminal liability and hefty fines for technical procedural errors, such as sending a mail-in ballot to a voter who did not ask for one or closing a ballot drop-off box too late. We can’t have elections without workers, and these laws will disincentivize people from signing up.

Which brings me to another, relatively novel, trend. Recall that former President Donald Trump is under criminal investigation in Georgia for calling Secretary of State Brad Raffensperger and asking him to “find” enough votes to swing the election to him over Joe Biden. The new, sweeping package of amendments to voting laws that passed in Georgia includes provisions that effectively transfer Raffensperger’s power to the GOP-led legislature. Republicans in numerous other states have introduced bills that would confine the power of governors, secretaries of state and local officials to administer elections for the benefit of voters — instead politicizing that power at the behest of Republican-controlled legislatures.

To be sure, H.R. 1 — which Sen. Joe Manchin (D-W.Va.) irresponsibly deemed too “partisan” for his tastes in an op-ed over the weekend — would do a lot to address voter suppression laws. And H.R. 4 would reinvigorate Section 5 of the Voting Rights Act of 1965 after a 5-4 Supreme Court gutted it in 2013 in Shelby County v. Holder, thereby restoring the Justice Department’s role in protecting the right to vote in miscreant states. (Manchin, a moderate who is pivotal to any national voting reforms, professes to support H.R. 4). But neither law would do anything to prevent Republican majorities in state or federal legislatures from ignoring the will of the people in the 2024 presidential election on the false excuse that the 2020 election was “stolen” from them.

The Electoral Count Act has functioned as a footnote to the Constitution when it comes to presidential elections for decades, but two blind spots are noteworthy after the last round. First, the statute enables state legislatures to ignore the popular vote and choose an alternative slate of electors if a vote is “close.” This loophole is precisely why state laws that would hand election administration to politicians is so important: it will make it easier for Republican-dominated legislatures to cancel voters’ choices and anoint their own candidate instead — much like Texas Secretary of State Ken Paxton tried to do to voters in four other states through a lawsuit that garnered the support of a whopping 126 House Republicans last year. 

Second, the Electoral Count Act allows a single senator and House member to object to a state’s certification of the electoral vote on any grounds when Congress meets on Jan. 6 to gavel in the new president. A simple majority is required to uphold the objection. Prior to 2021, all objections had been pro forma. That changed in 2021. Thus, if the 2022 midterm elections move the majority of the Senate and the House of Representatives to Republican hands, a Republican Congress could operate to ignore the will of the people on Jan. 6, 2025, if the Electoral College goes to a Democrat. 

The fact that numerous Republicans (here’s a list) refused to certify the will of the people on Jan. 6, 2021, and likewise refused to greenlight a bipartisan commission to investigate the insurrection on their own terms, bodes poorly. The “Big Lie” is paving the way for “We the People” to be replaced by “We the Politicians,” marking the end of an historic era for world democracies. 

The sad bottom line is this: If we want democracy itself to survive in the U.S. beyond the next four years, voters in 2022 must turn out to keep Democrats in control of Congress, regardless of their party affiliation.

On Sunday, New York Times opinion columnist Ross Douthat sketched out various Democratic strategies for salvaging self-governance. One is to enact electoral reforms at the federal level. But even if amendments to the Electoral Count Act are introduced, they cannot get past a Republican-led filibuster, and both Manchin and Sen. Kyrsten Sinema (D-Ariz.) have signaled they won’t vote to tinker with that parliamentary relic. Alternative two is to let the GOP filibuster-at-will, use the reconciliation process to pass modest legislation with a bare majority, and let voters decide which party deserves the power of the people. But given Republicans’ shrug over the bloodshed and violence of Jan. 6, this cautious approach seems naïve. The will of the people might not matter anymore.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.