Fixing American elections, revisited

Amid a generally depressing political scene in the United States, and with only a little over three months to go until mid-term congressional elections, there was a small ray of light last week. A bipartisan group of senators released their draft of proposed legislation to overhaul the Electoral Count Act of 1887, a key step in preventing the theft of a future presidential election.

We discussed the Electoral Count Act here back in January. Since then, as expected, Democrat efforts at more general electoral reform have come to nothing, but the hope remained alive that both sides of politics would be able to find a common interest in this more limited measure – since both, for slightly different reasons, might see themselves as potential victims of the current Act’s imperfections.

Now that hope seems to have borne fruit. You can read the bipartisan draft bill here. It’s attracted support from experts across the board, ranging from the law professors writing at the Election Law Blog to the libertarian Reason magazine to the editors at the very conservative National Review.

A few weeks earlier, the Cato Institute’s Andy Craig produced a comprehensive guide to the required reform, including his own draft legislation. The senators’ draft doesn’t follow all of his suggestions, but it’s sufficiently close to them to show just how much this question transcends the usual lines of political disagreement. People who would agree on very little else can still agree on this.

But one should never underestimate the ability of the Democratic Party to shoot itself in the foot. This week the news is that Democrats in the House of Representatives – and particularly those involved with the select committee investigating the insurrection of 6 January 2021 – are “unimpressed” with the Senate proposal, with one describing it as “not remotely sufficient” to meet the current threat to democracy.

No-one suggests that the bipartisan draft should be treated as holy writ, but this is one occasion where making the perfect the enemy of the good would be to court disaster. Time is running out before the mid-terms, and fixing important problems shouldn’t be made to wait on the more distant prospect of fixing others as well. Rick Hasen, probably the most distinguished expert in the field, while acknowledging that “more will still need to be done,” argues that “This is an opportunity that Democrats should jump at.”

It may well be that in terms of short-term political advantage, giving the Republican Party a chance to showcase its saner elements is not the best thing for the Democrats to be doing. Those Democrats who think that the Trumpier the Republican Party becomes, the better, are not being irrational. But they are playing with fire, as 6 January demonstrated.

In the long run, the country desperately needs a more mainstream Republican Party, and this particular opportunity for bipartisanship may be one step on that road. If at least some of the openings for subversion that Donald Trump tried to exploit are closed off, that will be an unmitigated gain.

At the same time, we should spare a thought for the underlying structural causes of the whole problem. Jamelle Bouie in the New York Times has an excellent piece pointing out that the existence of the electoral college is what makes presidential elections so vulnerable, and creates a mindset where anti-democratic tactics seem more legitimate. As he puts it:

We can and should patch the holes in the system we have. We should also recognize that it would be better, in the long run, to scrap the rules that make subversion a tempting option to begin with.