Two cheers for democracy in America

In an unusual showing of bipartisanship, Congress took decisive action toward the end of last year to update the archaic Electoral Count Act (ECA). This was especially important since Donald Trump and his loyalists had argued that Vice President Mike Pence, as president of the Senate, had the power to interfere with the counting of the certified electoral votes. Clarifying and strengthening the ECA, enacted in 1887, was job one. It was clear that most members understood that the “Make America Great Again” theory contradicted both the intentions of the Constitution’s Framers and a commonsense reading of the law’s text, to say nothing of unbroken historical precedent.

The updated version of the ECA — the Electoral Count Reform Act of 2022 (ECRA) — erases purported ambiguities that the defeated ex-president and his MAGA mob sought to exploit to overturn the 2020 election. Thus, the signature feature of the ECRA is its clarification that the vice president’s role presiding over the certification of a presidential election is purely ceremonial. Relatedly, the ECRA raises the threshold for members of Congress to initiate objections to electoral results to one-fifth of each chamber. Previously, just one House member and one senator could do so.

The ECRA includes other provisions that will help ensure that electoral votes tallied by Congress accurately reflect each state’s public vote for president, and that there can be just one conclusive slate of electors from each state. The law also provides for expedited judicial review of disputes about electors and their certification. Moreover, during the counting process, Congress must treat the electors certified by a state, and modified by any state or federal court relief, as conclusive.

The ECRA also deals with the role of the states, specifying that the choice of electors must occur in accordance with the laws of the state enacted prior to Election Day, and that it is each state’s governor — unless someone else is identified in the laws or constitution of a state — who is responsible for submitting the certificate of ascertainment identifying the state’s electors. Nor can a state’s legislature declare a failed election unless a force majeure has interrupted balloting. This blocks the type of phony allegations of fraud that Trump and his advisers attempted to peddle to Republican-dominated state legislatures to get them to declare that an election had “failed,” and then to select an otherwise losing candidate.

The ECRA is a landmark enactment that represents a rare, though critical and meaningful, bipartisan understanding of how fragile our democracy is and what it takes to prevent its destruction.

Misapplication of the law concerning the determination and count of presidential electoral votes is not the only threat to democratic rule that the defeated ex-president and his legal advisers sought to exploit. Indeed, advancing a doctrine known as the “independent state legislature theory,” ironically styling themselves as conservatives, Trumpian legislators and their lawyers blatantly ignore conservative legal interpretive principles and the…