Let’s Celebrate the Electoral Count Reform Act, Then Get Back To Work

December 23, 2022 | 10:52 am
Daily Hampshire Gazette
Michael Latner
Senior Voting Rights Fellow

There are two ways to describe the electoral reforms included in the omnibus bill that recently passed in the US Senate and is now hopefully on its way to passage in the House of Representatives: 1) they are the most important voting rights and electoral reforms in a generation; and 2) a last-minute compromise, they represent the bare-minimum protections needed to prevent another US insurrection and largely leave in place the nation’s shell of a democracy.  

Both descriptions are correct. 

Starting on page 1,934 of the $1.7 trillion omnibus spending bill, the “Electoral Count Reform Act” and the “Presidential Transition Improvement Act” tighten up procedural ambiguities and provide protections against future conspiracies to subvert presidential elections. The bipartisan effort, put forth in the very final days of the 117th Congress, is a direct response to former President Trump’s efforts to subvert the 2020 presidential election, which culminated in the January 6th Capitol Insurrection. 

What the legislation does 

The new legislation: 

–Prohibits state legislatures from changing how electors can be selected after an election, with exceptions only for “force majeure events that are extraordinary and catastrophic” (such as natural disasters that prevent voting);  

–Sets a firm date for the selection of electors; 

–Provides expedited judicial review of challenges to electors;  

–Raises the Congressional threshold for challenging state electors from a single member to one-fifth of the members of both chambers; 

–Clarifies that the Vice President “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors”; and 

–Provides $75 million in election security provisions, including election monitoring programs to enforce the Voting Rights Act. 

All these provisions directly address the tactics deployed by the Trump team to overturn the 2020 election: getting GOP-controlled state legislatures to claim that state elections had “failed” so that they could choose alternate electors; challenging the certification of electors through frivolous lawsuits; Congressional challenges to elector certification; and finally, the effort to persuade Vice President Mike Pence to reject certified state electors and replace them with the alternate electors. 

The importance of implementing these protections before the 2024 election cannot be overstated, especially in the event that Trump once again secures the GOP nomination. We ought to celebrate this bipartisan victory in the Senate where it passed by a 68-29 vote, including votes from 18 Republicans.  

Further bipartisan opportunities for reform

Given the GOP’s razor-thin majority in US House of Representatives in the coming session, there will be considerable pressure for the shrinking centrist wing of the GOP to find common ground with Democrats.  Although it is unclear how much the incoming US Congress might be able to accomplish, there is no question about the reforms needed for our democracy, many of which do have some modicum of bipartisan support. Among these vital reforms are the need to:  

–Require regular public disclosure of county-level ballot data when early voting starts, including the number of ballots generated, mailed, transferred to and from precincts, ballots in the chain of custody (along with ballot tracking requirements), ballots processed, ballots rejected, reasons for rejection, and ballots accepted; 

–Require the use of voting machines that provide paper ballots; 

–Require election jurisdictions to conduct true risk-limiting audits; 

–Specify security procedures for challenging ballots, to prevent attempts to halt ballot processing at the precinct- and county-level; and 

–Fully fund these requirements with the $400 million request included in President Biden’s 2023 Budget, which also includes election-related capital investments like upgrades to registration databases, voting systems, and physical structures; support for recruitment, training, and retention of election workers; and physical and cyber security. 

All of these reforms aim squarely at improving the electoral integrity of the existing system and should have support from those Republicans who supported the Electoral Count Reform Act measures.  

Further pro-democracy reforms we need

Of course, all the administrative reforms listed above would still leave in place most of the restrictive election laws being implemented by state legislatures, the judicial dismantling of the Voting Rights Act, and the institutionalized anti-Black violence of our party system, distorting representation in ways that retard democratic capacity. Successful reconstruction of democracy in the United States requires both organizational and structural reforms. To more thoroughly reform our democracy and realize our nation’s democratic capacity, here are at least some of the most important additional reforms we badly need to make: 

–Reinstall a Voting Rights Act that protects voters from racial discrimination, and ensure that all voters, regardless of race or what state they live in, have equal access to the ballot; 

–Require all states to provide automatic voter registration (AVR) and universal vote by mail (UVBM), evidence-based measures that reduce discrimination and increase participation

–Expand the size of districts and representative assemblies, including the House of Representatives, to more accurately reflect the political diversity of the electorate;  

–Use proportional electoral formulas to more accurately represent political minorities and reduce racial and partisan bias, including for the US Senate, one of the most biased elected assemblies in the world; and 

–Restore the organizational basis of our hollowed out political parties by strengthening the associational ties between under-represented constituencies and party leadership through relational organizing and movement-building

These and other reforms are needed if we, as a nation, hope to achieve the promise of a multiracial, multiparty democracy.  

So, let’s celebrate the protections embodied in the new Electoral Count Reform Act, while remembering that we still have much left to accomplish.