I am very pleased to welcome to ELB Book Corner three contributors to the edited volume,  Our Nation at Risk: Election Integrity as a National Security Issue (Julian E. Zelizer & Karen J. Greenberg eds. NYU Press 2024). The first contribution is from Lindsay Langholz:

January 6, 2021, looms large as we approach our first presidential election since President Trump’s failed schemes to overturn the results of the last.  No one reading ELB Posts needs a recounting of the violence and chaos, but sometimes forgotten in the reflections on one of our darkest days is the relatively obscure law at the heart of those efforts to undermine a free and fair election.

Trump and his legal team concocted a plan that would have fake certificates for slates of electors submitted to Congress in seven states, where Trump was not certified as the winner, and pressure then-Vice President Mike Pence to refuse to count the certified electoral votes from those same states. The plan was for pressure to then be applied to those states to change the outcome and eventually certify the election for Trump’s electors. All this skullduggery was pinned on purported vagaries in an 1887 law, called the Electoral Count Act.

In their final report, the January 6th Select Committee’s first listed recommendation was for Congress to reform the Electoral Count Act of 1887  “to deter other future attempts to overturn Presidential Elections.”  Experts from across the political spectrum joined this call for reform, describing the 1887 law as “woefully inadequate,” “outmoded” and “poorly drafted.” In December 2022, the Electoral Count Reform Act was passed within an omnibus bill.  The new law makes important changes, including clarification of the Vice President’s role in overseeing the Joint Session where electoral votes are counted, raising the threshold for objections, and designating one state official who is responsible for submitting the state’s certified slate of electors.  The law also creates a system for expedited judicial review.

With the 2024 presidential election upon us, the question arises: will the Electoral Count Reform Act be enough to prevent another electoral count crisis? Our piece for Our Nation at Risk looks at the history that led to the 1887 law, how it held up during contentious moments, including the 2020 presidential election and its aftermath, and the lingering vulnerabilities left unaddressed by the Electoral Count Reform Act of 2022. I’d like to highlight one in particular: the role of federal courts in resolving disputes over the certification of electors.

The Big Lie, the disproven theory that the 2020 presidential election was illegitimate because it was stolen, and election denialism have only calcified over time.  Election deniers now hold roles key to election administration and oversight in nineteen states. And groundwork is being laid to question the results of this year’s presidential election by influential groups, officeholders, and candidates.  Will it effect the outcome in 2024?  To take one example, Georgia’s State Election Board recently passed two rules that have either laid the foundation for catastrophic obstruction of the certification of election results or will make little difference, depending on who you ask.  For what it is worth, I think each reading of the Board’s recent decision has merit.  It is the uncertainty, the reasonableness of the disagreement, that is giving me heartache.  Because the entity who will be in the position to ultimately sort out such controversies, the United States Supreme Court, has not inspired much confidence to do so soberly, with the judicial restraint required.  One need look no further than this past term to understand why the Court’s approval ratings remain at near historic lows. The Court’s harrowing decision in Trump v. United States reveals the extent to which the majority will bend, or even flagrantly ignore, the Constitutional text, precedent, and even the all-important history and tradition, to reach the political and/or ideological outcome it prefers.  

Structural problems remain, including the Court’s willingness to pursue its preferred ends at seemingly any cost to our democracy, and it would be foolish to assume our work to avert another electoral crisis is done. But ECRA was unquestionably a necessary, positive reform and we are entering the 2024 presidential election safer because of it.