Democrats’ year-long push to pass major voting rights legislation stalled out on Wednesday night when Senators Joe Manchin and Kyrsten Sinema allowed Republicans to filibuster the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. The defeat all but ensures that Congress will not, for the foreseeable future, pass a traditional voting rights bill prohibiting common methods of voter suppression in all 50 states. But there is one voting rights reform left on the table that stands a real chance of passage, even with the filibuster intact. And it would, if drafted correctly, serve as a safeguard against one uniquely treacherous and frightening form of mass disenfranchisement.
That bill is a sweeping overhaul to the Electoral Count Act of 1887—a loaded gun that Republicans wielded against Joe Biden on Jan. 6, and one that remains aimed at the heart of every future presidential election.
The Electoral Count Act, or ECA, was passed in the wake of the disastrous 1876 election, when four states produced two conflicting sets of electoral votes. The law was designed to create clear procedures to resolve such disputes since the Constitution provides none. But it only muddied the waters with a new set of ambiguities, allowing Congress to reject electoral votes that are not “regularly given,” and to reject electors who are not “lawfully certified.”
What do those terms mean? No one knows for sure, leaving room for lawmakers to devise their own definitions. If one senator and one representative raise objections, Congress must suspend the count to address them. And if a majority of both houses agrees with the objectors, they may toss out the contested electoral votes. So, in theory, Congress can repudiate the lawfully elected president and install its preferred candidate. Moreover, the ECA directs the vice president to “count” electoral votes, a role he or she could attempt to exploit.
On Jan. 6, we learned firsthand how easily this ramshackle process can be abused. Disgraced conservative attorney John Eastman pressured Vice President Mike Pence to reject electoral votes for Biden. After Pence declined, Donald Trump’s congressional allies raised frivolous objections to the electoral votes from six swing states. A staggering 147 Republicans backed these objections, including a majority of the House GOP.
Consider that these schemes were thrown together at the last minute. If the ECA remains in its current form and Republicans win back Congress in 2022, it seems inevitable that they will mount a better organized challenge should Biden win reelection. Already, 15 Republicans who rejected the outcome of the 2020 election are running for secretary of state. If they prevail, and Biden carries their state in 2024, these officials may refuse to certify the true vote count, and endorse a slate of electors for Trump.
And yet many top Democrats and progressive advocates are indifferent, if not outright hostile, to ECA reform. After Senate Minority Leader Mitch McConnell floated the idea, Majority Leader Schumer condemned it as “unacceptably insufficient, and even offensive,” dismissing it as an attempt to “divert attention from the real issue.” Vice President Kamala Harris asserted that fixing the ECA is “not a solution to the problem at hand.” Democracy advocates Fred Wertheimer and Norm Eisen wrote that “clarifying the language of the ECA would not deal with the democracy crisis that our nation is facing,” adding that without “voting rights reforms first and foremost,” ECA reform “makes a mockery out of our democratic governance.”
Their attitudes offer the wrong framing.. ECA reform is not a substitute for voting rights legislation; it is voting rights legislation. We often discuss voter suppression and election subversion as two distinct assaults on democracy. But election subversion is, itself, a form of voter suppression—one that can function on a much larger scale than typical restrictions on the franchise.
Republicans’ 2020 chicanery vividly illustrated this peril. In the run-up to Election Day, GOP officials across the country made it harder to vote. They banned ballot drop boxes, outlawed curbside voting, shuttered polling places, and sued election administrators who tried to make voting easier. It should be a scandal every time a qualified American citizen is denied the ballot. But these laws generally affect elections at the margins. They shave off a few thousands votes here and there, which can make all the difference in a close race. Election subversion operates on a much larger scale. An election subverter does not necessarily stop people from casting their ballots. Rather, they nullify those ballots after the fact—potentially by the millions. When lawmakers refuse to certify the genuine results, everyone who supported for the actual winner sees their vote thrown away.
As an example, consider what would have happened if Pence or Congress had rejected Pennsylvania’s electoral votes (as Trump demanded). In 2020, Biden carried the state with 3,458,229 votes. Imagine if, after the election, Republican operatives invaded the ballot counting sites throughout the state and shredded a sufficient number of Democratic ballots to reverse Biden’s victory. These operatives would, of course, be subverting the election. But they would also be suppressing those votes—to the same degree as if they stood at the front of the polls on Election Day and refused to let Democrats in. By the same token, Pence would have suppressed these votes by rejecting Pennsylvania’s electoral slate. And Congress would have suppressed them by siding with the Republican objectors.
This fact is obscured by the presence of electors, the unique middle layer in presidential races. Technically, the people vote for electors, and electors vote for the president. Today, however, electors do not exercise independent judgment; they serve as “trusty transmitters of other people’s decisions,” as the Supreme Court put it. Most are bound by law to adhere to their state’s results. When they defy that obligation, they are, in the Supreme Court’s words, “reversing the vote of millions.” And when the vice president or Congress does not acknowledge the legitimacy of an elector’s vote, they are doing the exact same thing.
Had Congress agreed with every objection raised by Eastman and others on Jan. 6, it would have nullified 12,742,397 votes for Biden. This figure is likely larger, by orders of magnitude, than the number of people barred from casting a ballot through traditional voter suppression. And next time could be worse. If McConnell is truly open to ECA reform, it is an invitation Democrats should accept. They need no longer worry that doing so will take the pressure off Manchin and Sinema; that ship has sailed. As longtime ECA critic Greg Sargent has reported in the Washington Post, there is already a bipartisan bill on the table that would “Trump-proof” the 2024 election. It is past time for Democrats to take the advice of election law experts like my colleague Rick Hasen and seize the moment to get this done.
Whether it occurs on the front end or the back end, the nullification of votes is an affront to democracy. The Constitution guarantees “the right to have one’s vote counted,” and reforming the ECA will protect that right. Before they lose their trifecta, Democrats should jump on their last, best chance to voter suppression on a massive scale.
