The following is a guest post from Matthew Seligman:

Congress suddenly seems focused on reforming the Electoral Count Act as a fragile bipartisan consensus is emerging that the ECA is broken and must be fixed.  Critical questions remain about how to design a replacement.  The answers to those questions depend on the details of how the existing ECA could be manipulated, and a misdiagnosis could exacerbate the risks rather than eliminate them.

Today, I posted a short essay explaining why the dominant perspective among commentators and (it seems) some members of Congress is incorrect.  That perspective focuses on the risk that the two chambers of Congress would concurrently vote to reject a legitimate slate of electors.  That focus is understandable, because that’s exactly what Trump’s allies in Congress tried to do in 2021.  In prior scholarship, I have called that strategy the Two-Chamber Congressional Override, and it’s a serious problem that Congress must address. But it misses the greater risk in the foreseeable future: that a critical governor and a hyperpartisan House could steal a state’s electoral votes, without the Senate.

Here’s how, which I call the Swing State Governor’s Gambit: suppose an Irresponsible Party controls the House and the governorship in the critical tipping point swing state.  Think Florida in 2001, when Jeb Bush was governor and Republicans controlled the House.  Let’s assume that the Senate, which historically is more reasonable than the House on these issues, would always vote for the legitimate slate and against an illegitimate slate. And suppose the governor goes rogue and sends in an illegitimate slate of electors, ignoring the true results of the popular election in the state.  If no one sends in an alternative slate reflecting the true results, then only the rogue governor’s illegitimate slate reaches Congress.  And Section 15’s rules say that this single slate will be counted, unless both chambers concurrently vote to reject it.  Because the Irresponsible Party controls the House, it won’t do so.  Result: the rogue governor and the rogue House steal the state’s electoral votes.

And what if a heroic state official, like a secretary of state, bravely sends in an alternative slate of electors reflecting the true results of the popular election? The rogue governor’s illegitimate slate still gets counted.  In a multiple slate scenario like that, if the two chambers agree on which competing slate to count, then it counts.  The reasonable Senate votes to count the secretary of state’s legitimate slate. But the Irresponsible Party controls the House, which will vote to count the rogue governor’s illegitimate slate. And Section 15’s governor’s tie-breaker says that when the chambers disagree, the slate certified by the governor is counted. Result: the rogue governor and the rogue House steal the state’s electoral votes.

So there are at least two different ways that partisans could manipulate the ECA, the Two-Chamber Congressional Override and the Swing State Governor’s Gambit.  Congress seems to be focusing on the first, which requires that the Irresponsible Party controls both the House and the Senate to concurrently vote to reject a legitimate slate of electors.  And it is ignoring the second, which requires that the Irresponsible Party controls only one chamber of Congress and a critical governorship.

Because both strategies for manipulation are technically viable under the existing ECA, the relevant relative risk assessment turns on whether it is more likely that (a) the Irresponsible Party controls both the House of Representatives and the Senate, or (b) the Irresponsible Party controls both the House of Representatives and a critical swing state governorship. In other words, is it more likely that the Irresponsible Party controls the Senate or a critical governorship? I think that under plausible political assumptions about the Senate and swing state governors, it is vastly more likely that the Irresponsible Party would control a critical swing state governorship—like David Perdue in Georgia—than the Senate.  If I’m right about that, then the Swing State Governor’s Gambit is the most pressing threat.

Reform must therefore focus both on the risk that the chambers of Congress would together reverse the results of the presidential election and on the risk that the House of Representatives together with a governor would do so. And it must proceed with reform with full understanding that the realistic risk of the latter is far greater.