The United States has a serious elections problem. Despite the work of the Civil Rights Movement and advocates over the decades, voter suppression continues to plague our system and stands as a barrier to free and fair elections.
The goals of this modest reform effort are needed, but Congress has to do so much more to protect voting rights.
In the wake of the 2020 election and the subsequent Jan. 6 attack on the U.S. Capitol, Congress has been under pressure to act. Ideally, lawmakers should be working on making voting simple and easy for all voters. Instead of taking up voting rights legislation, however, a bipartisan Congressional working group has taken a much narrower approach by introducing reforms to the Electoral Count Act of 1887.
This effort to fix and clarify how we elect the President of the United States is essential for ensuring the stability of our democracy. But it is an obvious fix that should have happened with haste, not more than 18 months after a coup. We know so much more work is needed to respond to the assault on individual voting rights in states across the country. The goals of this modest reform effort are needed, but Congress has to do so much more.
What is the Electoral Count Act of 1887?
This old law determines the process by which the United States finalizes the selection of a President every four years. States present electors whose votes are counted before a joint session of Congress, where the Vice President presides. The law is vague and fails to lay out a straightforward process for vote certification. Historically, it was enacted due to the contested election of 1876, where Rutherford B. Hayes of Ohio narrowly defeated Samuel J. Tilden of New York in a contested process.
Why is Congress revisiting this law now?
Sen. Susan Collins (ME) told the Senate Rules Committee, “in four of the past six presidential elections, the Electoral Count Act’s process for counting electoral votes has been abused with frivolous objections raised by members of both parties…but it took a violent breach of the Capitol on Jan. 6 to really shine a spotlight on how urgent the need for reform is.”
What happened at the committee hearing?
On August 3, the Senate Rules and Administration Committee, chaired by Sen. Amy Klobuchar (MN) and Ranking Member Roy Blunt (MO), held a hearing on reforms to the Electoral Count Act of 1887. A bipartisan group of Senators made the case that changes must be made to prevent future insurrections and other efforts to subvert legitimate election results.
Sen. Padilla (CA) delivered critical remarks during the hearing, showing that people followed and believed the “big lie” (that the 2020 election was stolen), lawyers attempted to exploit the ambiguities in the ECA, and people stormed the Capitol to try and carry out a coup. He highlighted those events to remind his Senate colleagues why they sat in that hearing room building the case for reform.
Sen. Cruz (TX) unintentionally echoed Sen. Padilla, arguing that we should have had an 1876-style commission to parse through the “irregularities in the 2020 election,” stating that many Americans have questions about the 2020 election.
What would the bill do?
The Electoral Count Reform and Presidential Transition Improvement Act of 2022 (S.4573) would:
- Establish that the Vice President’s role in counting electoral college votes is merely ceremonial—the Vice President does not have the power to reject the electoral results.
- Require objections to the count be supported by one-fifth of all members present from the House and Senate, as opposed to a single member as is required under current law.
- Establish that state Governors are the sole officials with the power to certify electors (another official can be named prior to election day).
- Require that electors be appointed on Election Day, consistent with current law.
- Prevent state legislatures from appointing different electors for ambiguous or nefarious reasons.
- Prohibit post-election changes to the rules and laws dealing with the election’s certification.
- Expedite judicial review for the adjudication of discrepancy of electors (although the window of time has been criticized).
These Changes are Not Enough: Here’s Why
The glaring omission during this hearing was any discussion of voting rights. The Freedom to Vote: John R. Lewis Act (H.R.5746)—a bill that would address the more serious and systemic injustices in our voting system—was mentioned only a handful of times.
The January 6 insurrection was serious, but Congress cannot abandon the many Americans who are crying out for more fairness in our electoral process.
The catastrophic events of January 6 warrant reforms, but the ongoing tragedy of voter disenfranchisement continues for the people of Randolph County, Georgia, a predominantly Black county, most of whose precincts were temporarily closed in 2019 (and reopened due to the outcry); the people of North Carolina who in 2016 dealt with a voter ID law which targeted African-Americans with almost surgical precision; the people whose voice is not heard by candidates because they cannot donate $5,000 to a PAC; or the people who are in the minority of a gerrymandered district.
The January 6 insurrection was serious, but Congress cannot abandon the many Americans who are crying out for more fairness in our electoral process. We cannot forget them.
