The clear and present danger to our democracy now is that former President Donald Trump and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. Trump or his anointed candidate is not elected by the American people….
If the Republicans want to prevent the Electoral Count Act from being exploited in 2024, several fundamental reforms are needed. First, Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.
Congress should also increase the number of members required both to voice an objection and to sustain one to as high a number as politically palatable. At the moment, only one member of each chamber is necessary to send an objection to the Senate and House for debate and resolution — an exceedingly low threshold that proved a deadly disservice to the country and the American people during the last election.
Currently, Congress has the power under Article II and the Necessary and Proper Clause to prevent states from changing the manner by which their electors are appointed after the election, but it has not clearly exercised that authority to prevent such postelection changes. It should do so.
Finally, the vice president’s important, but largely ministerial, role in the joint session where the electoral votes are counted should once and for all be clarified.
It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. Republicans and Democrats need to put aside their partisan differences long enough to fix this law before it enables the political equivalent of a civil war three years hence. The law is offensive to Republicans in constitutional and political principle, officiously aggrandizing unto Congress the constitutional prerogatives of the states. It is offensive to Democrats because it legislatively epitomizes a profound threat in waiting to America’s democracy. The needed changes, which would meet the political objections of both parties, should command broad bipartisan support in any responsible Congress. For Republicans in particular, these changes are idiomatic sleeves off their vests.
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