I have written this piece for Slate. It begins:
The debate over whether Democrats should pursue their large voting rights package or a narrower law aimed against election subversion became moot on Wednesday when Democrats could not muster up enough votes to tweak the filibuster rule to pass their larger package. Some Republicans are now making noise that they would support narrower anti-election subversion legislation centered on fixing an 1887 law known as the “Electoral Count Act.” Democrats should pursue this goal but think more broadly about other anti-subversion provisions that could attract bipartisan support. Bipartisan, pinpointed legislation is the best chance we have of avoiding a potential stolen presidential election in 2024 or beyond….
With the wide option off the table, the operative question is how best to go narrow as more Republicans, including most recently House minority leader Kevin McCarthy, signal they might be open to such a bill. Sens. Manchin and Susan Collins are among a group of senators working on reform. Bipartisan buy-in is especially important because it means that both sides are more likely to feel bound by the rules if a future dispute arises.
Fixing the Electoral Count Act is a no-brainer. As Slate’s Mark Joseph Stern recently wrote, former President Donald Trump’s attempt to reverse his loss to Joe Biden in the electoral college depended upon exploiting holes and ambiguities in the poorly-drafted set of rules for Congress to certify Electoral College results from the states. Stern says Democrats should “seize the moment to get this done.”
If Republicans are really prepared to come to the table (and that remains a big if), Democrats should not limit themselves to small tweaks to the Electoral Count Act such as ones that would simply limit the vice president’s discretion in presenting state electoral college votes to Congress. Of course Republicans would be inclined to support such a change when the next counting of electoral college votes will be presided over by Democratic Vice President Kamala Harris.
Other potential ECA changes should include raising the threshold for objecting to state electoral college votes; right now it takes only one senator and one representative to raise an objection. There are other creative ideas out there as well, such as involving federal courts in resolving certain disputes when there are competing electoral college slates submitted by officials from a state. It is in the interest of both Republicans and Democrats to prevent manipulation of the process and ensure that the winner of the election is actually declared the winner. The more that can be clarified in advance behind the veil of ignorance, the better all who believe in democratic elections are going to be.
But ECA reform should not be the only thing on the agenda in any bipartisan talks to prevent subversion. I’ve proposed a long list of reforms that don’t have a partisan valence. Consider, for example, a requirement that voters cast their ballots using equipment that produces a paper ballot that can be recounted in the event of a dispute over the winner of the election. Some Americans still vote on wholly electronic voting machines, where the only proof of the election winner is code spit out by a computer. In an era when voters distrust election results and manipulators like Trump seek to sow doubt in election integrity, physically tangible ballots that can be examined by a court or other neutral actor in the event of a dispute are indispensable. A provision requiring paper ballots was included in the larger voting bill that went down to defeat earlier this week, but there’s no reason it can’t also be part of any ECA reform….