After Celebrating Likely Passage of Bill Fixing the Electoral Count Act, We Must Focus on What Didn’t Make It into the Omnibus to Help Prevent Future Election Subversion

I’m thrilled, as Derek reported, that the must-pass omnibus bill in the Senate includes reform of the Electoral Count Act. As I detailed in this Harvard Law Review Forum piece, Donald Trump and his allies in 2020 tried to use holes, ambiguities and lies about the current Electoral Count Act in an effort to upset the transition of power and keep Trump in office despite his loss. Reform of the ECA is the single most important reform that Congress can take to prevent future stolen elections.

But this reform is far from enough to end the dangers of election subversion. Wendy Weiser notes that “In addition to shoring up the guardrails protecting elections & voting rights, Congress must appropriate adequate funds for state election administration. The $75 million in the approps bill is helpful, but not nearly enough, and far short of the $400 in the president’s budget.”

In addition, I have been arguing for a long time that Congress should have passed a law banning the use of voting machines that do not produce a piece of paper that can be used in the event of a disputed election. For the sake of voter confidence in these times where millions of people doubt the integrity of the election system, having that physical evidence of vote totals is essential.

As I argued in the Harvard piece, we need to clarify the law and stiffen the penalties for those who engage in election subversion. One of the key statutes being used, about obstructing an official proceeding, stems from a financial reform law (Sarbanes-Oxley) and already Jan. 6 defendants are arguing it does not apply to the attempt to interfere with Congress’s counting of electoral college votes.

Moreover, as I argued at Slate last month, even with ECA reform, there is much more that we need to do because we continue to face these dangers:

Second, election-denying secretaries of state won their races in deep-red states like Alabama, Indiana, South Dakota, and Wyoming. These are not swing states, and so it is unlikely to affect the outcome of the presidential election directly. But these kinds of claims encourage lawlessness and undermine voter confidence in election integrity—confidence which is absolutely essential to keep things going. So long as election denialism spreads, our democracy is not safe.

Third, Trump is still the leader of the Republican Party, and he’s completely committed not only to perpetuating lies about the last election but to doing whatever it takes to win the next one. That could include encouraging violence among his supporters, including those in police forces and the military. We cannot exclude the possibility of more extreme tactics next time around.

Fourth, Trump could well run for office and win fairly in 2024, and then seek to change the rules for conducting elections so that he or his cronies and successors can remain in power. There’s no knowing what such a second Trump term would look like, but it would be a graver threat to democracy than the first.

Finally, once Trump leaves the scene, the next Trump-like candidate may be more effective at organizing for election subversion. Trump had the will but not the talent to manipulate the political system to end our democracy. The 2020 election was a test run for our democracy and we barely passed because of the courage of enough people in power. Now, with so many people believing that our elections can be stolen, the fragility of our democracy cannot be taken for granted as some of them eventually serve in positions of power in elections.

So I’m thrilled about the big step forward Congress is going to take. It’s a moment for celebration. But then let’s not let our guard down.

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