
Sometimes, it seems, the Senate isn’t entirely useless.
On Wednesday, a bipartisan group of 16 senators, led by Susan Collins of Maine and Joe Manchin of West Virginia, released the text of a new bill intended to make it harder to overturn the results of a presidential election. A direct response to Donald Trump’s multipronged attempt to stay in power, the bill is meant to keep a future candidate for president, including a losing incumbent, from following the same playbook.
At its heart, the bill is a major revision of the 1887 Electoral Count Act, which Trump and his legal team tried to exploit to create confusion over the certification of electors and the counting of electoral votes. Specifically, Trump pressured Republican state legislators in key swing states he lost to throw out votes and send false slates of electors in place of those won by Joe Biden. He then coordinated with allies in Congress to object to the counting of Biden’s electors and pushed former Vice President Mike Pence to toss out those electors and, if needed, move the election to the House of Representatives, where Republicans controlled enough state delegations to keep him in office.
The bill would address each part of the scheme. It would require states to choose electors according to the laws that existed before Election Day and prevent state legislatures from overriding the popular vote by declaring a “failed election.”
The bill would make it clear that each state can send only one slate of electors to Congress. It would require the governor (or other designated official) to certify the winning candidate’s electors before a specified deadline, to try to prevent postelection manipulation. If a state tries to subvert this process, the bill sends the dispute to a panel of federal judges. Candidates can then appeal the judges’ decision to the Supreme Court on an expedited basis.
As for Congress, the bill makes clear that the vice president has only a “ministerial” role in the counting of electors and raises the bar for objections, from only one member in each chamber of Congress, to one-fifth of all members in both the House and Senate.
I don’t know whether the bill can actually pass the Senate, but it is a good bill. It blocks many of the most immediate threats to presidential elections and closes most avenues for postelection subversion under the current system. At the same time, it should be said that the reason that any of this is possible — the reason Trump had a path to overturning the results of the election in the first place — is the antidemocratic aspect of the current system.
Even with the provisions of this bill in place, the Electoral College provides any number of opportunities for mischief.
The fact that an entire national election can turn on a few thousand votes in a handful of states is a powerful incentive to restrict the votes of your opponents and meddle with the process all the way down to the precinct level. The fact that the loser of the national popular vote can become the winner of a national election is an additional incentive to subvert the voting process and impede access to the ballot box. And the fact that a legislature could, before the election itself, simply allocate electors to the candidate of its choice without any input from the public is an ongoing and ever-present threat to electoral democracy.
There’s also the effect of the Electoral College on how Americans conceptualize democracy. It “frames elections more as complex puzzles or logic games than as singularly important moments in self-governance,” the legal scholar Katherine Shaw notes in an article for the Michigan Law Review. In a similar manner, the ultimate winner-take-all nature of the system short-circuits any nuanced understanding of the political geography of the United States. “We color-code the country in red and blue, eliding the fact that Americans of all political identities reside in every county and every state,” Shaw writes. “This coding may well have primed a portion of the electorate to accept outlandish claims of election fraud when a state like Georgia, one that had for decades been reliably ‘red,’ shifted to the ‘blue’ column.”
You can see this psychological effect in the often-heated reaction to the idea of a national popular vote for president. Many Americans hold the sincere belief that, for instance, every Californian is a San Francisco liberal and every Texan is a right-wing Dallas suburbanite. They fear the domination of “large states” as if each were a single, uniform bloc of political influence or as if size and density determined the shape of state politics. But it doesn’t. And for most voters, residence in one state or another has almost nothing to do with one’s interests, views and political preferences.
The Electoral College makes it difficult to see that each state contains a multitude of political perspectives, and that our democracy might be a little healthier if the vote of a Seattle Republican mattered as much for the outcome of a presidential election as that of a Green Bay Democrat.
Despite the good things about this bill, the single most important reform we could make for our presidential elections is to end the Electoral College in its current form, whether that means a national popular vote or the proportional allocation of electors (which already exists in both Maine and Nebraska) or some hybrid of the two.
We can and should patch the holes in the system we have. We should also recognize that it would be better, in the long run, to scrap the rules that make subversion a tempting option to begin with.
With that said, the most important safeguard for our electoral system isn’t a particular set of rules and arrangements, but political actors who accept defeat, honor the results of an election and allow the winner to take and exercise the power to which they’re entitled. And it is a serious, possibly existential problem for American democracy that a large part of one of our two major parties just doesn’t want to play ball.
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