Fixing American elections

I suggested last week that the Biden administration had “less than the required sense of urgency” about fixing structural weaknesses in the American electoral system. This week the president tried to return some momentum to the issue, with a speech in Georgia in which he called for the Senate to change its voting rules if necessary to pass two electoral reform bills.

Biden was clear in defining what is at stake, saying “The battle for the soul of America is not over.” But although (with the vice-president’s casting vote) there is a Senate majority supporting the two bills – the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act – it appears that not all Democrat senators are willing to carve out an exception to the filibuster rule. Without that, the Republicans have a veto, which they will certainly use.

Leaving aside the mechanics of the filibuster, there’s a threshold question as to how much use electoral reform is going to be if it’s seen as a purely partisan issue. Ronald Brownstein in the Atlantic last week argues that the Democrats have no choice; that the Republican Party has surrendered to a Trumpian hostility to democracy, which “has left Democrats in the precarious position of seeking to reinforce the basic pillars of democracy on their own.”

Ned Foley, writing in response at Rick Hasen’s Election Law Blog, is not so sure. He argues that the broad front strategy has not really been tried. Instead of trying to get Republicans to sign on to what remains fundamentally Democrat legislation, what is needed is an approach along the lines of “let’s work with whatever are the shared premises that separate us from the Big Lie insurrectionists who want to destroy democracy.”

I’ve said before that America (and indeed the world) needs to construct as broad a front as possible to confront the enemies of democracy, so my sympathies here are with Foley. But the chance of anything much like that happening with electoral reform, either in terms of Democrat overture or Republican response, seems pretty slim.

There is one particular aspect of the problem, however, that looks as if it might be addressed. That’s the legislation that briefly became famous a year ago, the Electoral Count Act of 1887, which sets out the procedure for counting the votes given by the electoral college and for dealing with disputes over them – for example, where a state has made two conflicting returns.

There’s general agreement that the Electoral Count Act is badly drafted, difficult to understand and dangerously ambiguous in places. It may be that, independently of their different positions on the rest of the reform agenda, sufficient numbers of Democrats and Republicans will be able to agree to pursue a rewrite of it as a stand-alone measure that would be able to overcome the filibuster.

What should such a measure include? Most efforts to rig elections involve fairly low-level stuff; partisan officials doctoring ballots or fiddling local returns, and partisan lawmakers or administrators tweaking the rules in such a way as to disadvantage their opponents and advantage their own side. Most of the recent measures adopted by Republican legislatures are of this sort, and they are what most of Biden’s legislation is designed to combat.

Neither side has been historically innocent of moves like this. They are dangerous, not only because they distort particular results but because they undermine democracy in general. They do not, however, amount to a frontal attack on democracy itself. The Trumpist turn in the Republican Party has opened up the prospect of something even more serious.

There are at least four such possibilities when it comes to presidential elections:

  • state canvassing boards or secretaries of state could falsify results, awarding victory to a minority slate of electors;
  • state legislatures could ignore the results, appointing their own preferred electors instead;
  • the vice-president, presiding over the joint sitting of congress, could refuse to accept electoral votes from certain states;
  • both houses could vote to reject particular electoral votes and accept others in their place.

Federal legislation can’t do very much about the first of these – it would be a matter for the courts. The second might be attempted, but it appears to be already illegal under federal law: while the states can decide beforehand to choose electors by vote of the legislature (or any other method) rather than popular election, the appointment has to take place on election day. But there’d be no harm in amending the act to make that clear.

Most attention last year focused on the third and fourth possibilities. Here there’s the chance of agreement, because at the time of the next presidential election the vice-president will be a Democrat but the majorities in congress will quite possibly be Republican. Each side can potentially gain by ruling out the possibility of its opponents trying to steal the election.

What’s needed is an amending act that would firstly make it clear that the vice-president has no discretion in opening or counting the electoral votes, and secondly prevent congress from looking behind the returns, confining its discretion to cases where there is an obvious conflict (such as rival state governments both submitting returns, as happened in 1876-77).

As Foley and others explain in a recent op-ed piece:

Whenever there is just one submission of electoral votes from a state — in other words, no competing slates of electors — Congress should disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed. As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state’s electoral votes.

This would by no means eliminate the threat to democracy, but it would be a real step forward – and if it can produce a consensus then it might even be the start of something bigger.

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PS: Andy Craig at the Cato Institute has now written a very good piece detailing just what changes should be made to the Electoral Count Act, mostly in line with my suggestions above.

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