My New One at Slate: “The Collins-Manchin Election Bill Is a Deal Democrats Should Grab”

I have written this piece for Slate. It begins:

Last week’s announcement by a bipartisan group of senators proposing reforms to the poorly written 1887 law that governs Congress’ counting of the Electoral College votes is a good half-loaf measure against election subversion. This is an opportunity that Democrats should jump at, despite their nervousness, if they have the chance to pass the bill with some Republican support this summer or fall. Any meaningful step that lessens the chances of a stolen presidential election in 2024 or beyond is worth pursuing, and the bill would be a significant step forward. But more will still need to be done….

Some Democrats, such as Democratic election lawyer Marc Elias, and good government reformer Norm Eisen, have expressed concerns about certain provisions of the proposed Electoral Count Reform Act, and whether they would provide new pathways for subversion or limit the potential for judicial review. But as Ned FoleyMatthew SeligmanDerek Muller, and Bob Bauer and Jack Goldsmith have shown, these concerns are based either upon misreadings of what the act actually does, or quibbles with some small amount of unclear language that could be improved upon as the measure makes its way through the legislative process.

Right now there are nine Republican senators who have co-sponsored the ECRA, just one short of the ten necessary to overcome a potential Senate filibuster, and Senate Minority Leader McConnell has indicated his general support for this kind of reform. It thus has a realistic chance of passing, so long as enough Democrats and Republicans are willing to go along. This opportunity is unlikely to last even if Democrats keep control of the Senate in the fall. Republican Sen. Rob Portman, for example, is a co-sponsor of the legislation and he is retiring from his Ohio seat at the end of his term. If he’s replaced by Trumpist candidate J.D. Vance, that will be one fewer senator on board for this urgent reform. And if Democrats lose the House, there’s no way that Kevin McCarthy, beholden to Trump for his support, would bring up such a measure.

In thinking about how to minimize the risk of election subversion, it is best not to think of it as an on-off switch where either we cut off the chances of a stolen election or not. It is better to think of all the incremental steps we can take to put up roadblocks against electoral malfeasance.

The ECRA is a major step forward to minimize these risks, for the reasons I’ve explained. Even though the ECRA does not address the risk of voter suppression, its introduction was welcomed by a coalition of civil rights and voting rights leaders who recognize that election subversion is an urgent priority.

There is obviously much more that should be done. When Sens. Collins and Manchin announced their bipartisan deal, there was a separate piece of proposed legislation that would help protect election workers and adequately fund the federal U.S. Election Assistance Commission, which helps states run fair elections. But there are only 5 Republican co-sponsors of that legislation. These proposals are crucial too, as are proposals to raise the penalties for attempting to submit fraudulent electoral slates or otherwise obstruct official proceedings.

And there’s a key part missing from the ECRA, one that I believe is absolutely crucial to minimize the risk of subversion: every voter should vote on a voting machine that produces a piece of paper that could be recounted by a judge or other neutral counter in the event of a disputed election. We cannot have anyone vote on fully electronic voting machines that—in this era of mistrust and chicanery—require people to trust the results of an election announced by computer software and without any paper trail….

Share this: