Support for reforming the Electoral Count Act remains bipartisan, with broad support across the ideological spectrum. Recently, however, there has been some belated pushback from former president Trump and some of his supporters. This has included statements from Trump himself, in which he brazenly brags about wanting former vice president Mike Pence to act on the theory that he “could have overturned the election.” This exercise in saying the quiet part out loud has, if anything, only strengthened the resolve to push forward with fixing the ECA.
But others are making a more nuanced case: that ECA reform is a backdoor to Democratic voting and election changes in the failed Freedom to Vote Act, which recently died in the Senate due to failure to overcome a filibuster.
The Conservative Action Project has issued a letter, which Cato colleague Walter Olson responded to here, claiming among other things that “Republicans who engage in negotiations to open up the Electoral Count Act are willfully giving Democrats another avenue to shepherd in their election federalization priorities.” Burgess Everett, reporting for Politico, also notes that “Republicans are already grousing that Democrats are trying to shoehorn in changes not directly related to the Electoral Count Act.” He quotes an unnamed GOP aide as saying that “Democrats keep trying to push the envelope and talk about challenging state election laws in federal courts.”
There is indeed some discussion between Republicans and Democrats regarding how expansive the role of the federal courts should be under ECA reform, a balancing act between trying to constrain bad actors in Congress and bad actors in the states. There is a reasonable middle course grounded in the constitutional text and structure, as I outlined here.
Clearly not on the table are any of the wide‐ranging intrusions into state election laws and voting procedures from the failed Freedom to Vote Act and similar bills. That legislation, derided by Republicans as an attempted federal “takeover” of state elections administration, encompassed a great many new mandates about early and absentee voting, voter ID, how to structure election agencies, redistricting, and even things as picayune as policies on distributing bottled water at the polls. These measures were based on Congress’s power to set “time, place, and manner” rules for congressional elections (which are generally set by the states but which Congress has the power to override), as well as the broad federal enforcement powers under the Fourteenth and Fifteenth Amendments.
Any reform to the Electoral Count Act would by necessity be much narrower. For one thing, Congress’s constitutional authority over presidential elections is much more constrained. Unlike congressional elections, there is no free‐standing congressional power to overrule the states when it comes to determining the “manner” in which presidential electors are chosen. There is only a congressional power over the time of choosing electors, and there is congressional power over how Congress itself will treat disputed electoral votes. But there is no federal power to tell states they must use any particular set of election procedures in the popular vote for president, and no version of ECA reform has proposed going that far. States could, if they wanted, not hold a popular vote at all to determine their presidential electors, and instead have their legislature pick them, or the governor, or even by drawing names out of a hat. None of those are likely, of course, but Congress couldn’t stop them and neither would any possible version of ECA reform.
I critiqued the discussion draft released by Democratic senators Angus King, Dick Durbin, and Amy Klobuchar, in part because the federal court procedures proposed would overstep some constitutional limits and are more complicated than is necessary. I am more optimistic about the bipartisan group led by Sen. Susan Collins (R‑ME). But even the King draft, the most expansive proposal anybody has seriously floated, does not come anywhere near the worries that drove opposition to the other Democratic election bills.
There are some affirmative duties imposed on the states by the Constitution with regard to presidential elections. It is appropriate for those to be enforceable. At its most basic, the Constitution says that states “shall” appoint electors. It’s not optional. A rogue governor refusing to certify the electors, or certifying the wrong set of purported electors, would be in violation of not only state law but also the federal Constitution. Likewise, it would be unconstitutional for a state legislature to try to change the manner of appointing electors after election day because they don’t like the result. In such hypothetical cases, the federal courts could properly have authority to intervene. For the most part, they already do. The only real question is how to maybe clarify and streamline that already existing jurisdiction, along with providing for congressional deference to the outcome of such court cases.
To the degree there has been any attempt to improperly expand the role of the federal courts in presidential elections, it has not come from the Democratic side of the aisle. Instead, it was the dozens of frivolous lawsuits filed by Trump and his supporters seeking to overturn the 2020 election, including the outrageous assault on federalism attempted by Texas in its lawsuit against Pennsylvania and other battleground states. But the courts, including the Supreme Court, rightly rejected these suits as utterly baseless. If there has been anybody advocating an unconstitutional federal takeover of the Electoral College process, it was those urging federal courts and Congress to throw out the duly cast electoral votes certified by the states in 2020. Far from threatening state autonomy, ECA reform would strengthen and protect the role of the states in presidential elections.
While there are narrow technical questions about what the federal judiciary’s role should look like under ECA reform, it would not extend to any new way to challenge a state’s underlying election laws. It would only amount to enforcing the state’s election laws as they stood on the relevant deadline under Congress’s time‐setting power, which is election day in November. And it would only cover the back‐end process of translating the popular election results into Electoral College votes, not anything having to do with how voters cast their ballots at the polls or how the states administer that election.
Democratic senators have acknowledged as much, to the chagrin of some on the left who have denounced ECA reform as an insufficient distraction, even though the other Democratic voting bills remain unpassable regardless of any action on ECA. Last week, Sen. Chris Murphy (D‑CT) held a press conference where he spelled it out: “I’m heartbroken over our failure to get the voting rights act passed. But I’ve never been a believer that the perfect should be the enemy of the good, especially when it comes to protecting our democracy from attack.”
In short, all available evidence shows that the Democrats engaging on ECA reform are acting in good faith. They are not trying to pull a fast one here and any such attempt would surely be futile. To pass an ECA bill requires at least ten Republican votes in the Senate, and realistically that means also securing the approval of minority leader Mitch McConnell. Having Republicans at the table can help make sure principles of federalism and state autonomy are given proper consideration in ways that Democrats are not necessarily as attuned to. But ECA reform is not a realistic vehicle to resurrect election and voting law proposals that Republicans have already rejected. That misplaced concern would be a very poor reason for Republicans to walk away from the urgent task of making sure our presidential elections don’t become a quadrennial constitutional crisis.
