By Fred Wertheimer and Norman Eisen / Special To The Washington Post
With the Senate finally scheduling action to address the national epidemic of voter suppression and election hijacking laws, Minority Leader Mitch McConnell, R-Ky., and others in his party have suddenly found an alternative election reform they are signaling they will consider instead. They suggest reforming the Electoral Count Act (ECA), the statute that guides congressional handling of presidential elections once every four years.
We should not fall for this bait and switch. We strongly support ECA reforms; but they are no substitute for addressing the larger election assault that is hitting every voter in every election. Indeed, ECA reform is meaningless without a fix for those more fundamental problems.
It’s not just McConnell who is suddenly open to election reform. Senate Republican Whip John Thune of South Dakota just announced that the GOP could consider ECA fixes. The otherwise anti-reform Wall Street Journal editorial page took the same line. On “Meet the Press,” conservative commentator Jonah Goldberg contended that reforming the ECA would mean “dealing with the real problem.” Pieces in other prominent publications have sung the same tune. And news has now emerged of bipartisan discussions of the topic.
Some of these individuals point to the fact that ambiguities in the ECA may have contributed to chaos exactly one year ago on Jan. 6, 2021. They also say that there might be bipartisan willingness to address these problems, as opposed to what they claim to be a partisan Democratic drive to pass the more comprehensive voting reforms of other bills that would counter open suppression of minority votes and the many other worst excesses of hundreds of state legislative efforts across the land. Last year, state lawmakers considered 440 bills that would restrict the vote or give legislatures the power to disregard it entirely. In 19 states, 34 of those bills have become law. And there is no reason to believe that the onslaught will stop in 2022.
ECA improvements are certainly needed, such as clarifying the exact role of the vice president in certifying election results or increasing the threshold to challenge a state’s electors from current law, which allows just one senator and one representative to object. But no version of them will address the comprehensive predations of partisan state legislatures driven by former president Donald Trump’s Big Lie that the 2020 election was stolen. Passing broader legislation would. Protecting the fundamental right to vote is not a partisan act.
In Florida, for example, the Freedom to Vote Act (FTVA), which Senate Democrats have sponsored, would make moot a new law that institutes onerous ID requirements to even request a mail-in ballot. Such requirements disproportionately affect voters of color. In Texas, the bill would preempt a blanket ban on ballot drop boxes, which are essential for densely populated, heavily minority jurisdictions. In Georgia, the legislation would counter a new provision that outlaws giving food and water to voters waiting in line; such lines are most common in counties like Fulton, DeKalb and Cobb, where voters of color predominate.
Meanwhile, the House-passed John Lewis Voting Rights Advancement Act would torpedo future voter suppression laws by requiring certain states and local jurisdictions to obtain pre-clearance from the Justice Department for any changes to voting laws.
Changes in how Congress handles the electoral vote count around Jan. 6 every four years wouldn’t speak to any of that. Nor would they address what is perhaps among the worst of the recent state predations: election hijacking. Last year, 262 bills introduced in 41 states would award undue power to state legislatures or hyperpartisan actors to interfere with election administration; 32 of them are now law in 17 states.
The measures introduced or passed do things such as intimidate election officials by allowing bogus “audits” of nonexistent fraud, criminalize routine election administration and allow legislatures to replace election boards that refuse to bow to partisanship. In the worst-case scenario, some proposals permit the state legislature to determine who won an election, irrespective of the voters’ choice.
The voting rights package that the Senate is attempting to move in the coming weeks would respond to all of that; forcefully. The FTVA mandates that states use paper ballots for voting for federal office, creating an indisputable record of the vote in case a state legislature attempts to question the results via a phony audit. The bill would protect election officials from dismissal without cause. It would recognize a federal right to vote so that undue state legislative meddling can be challenged in court, subjecting state-level election processes to federal judicial scrutiny and allowing redress against individuals or legislatures that attempt to subvert the duly exercised will of the people.
The extent and seriousness of voter suppression and election hijacking at the state level illustrate the foolishness of substituting reform of the Electoral Count Act, which does not purport to offer a solution to these problems, for more sweeping proposals that do. ECA reform is welcome after or even as part of a bigger bill; but not instead of it.
The fact that ECA reform might be bipartisan — that some Senate Republicans might be willing to join Democrats in admitting the existence of issues here — is no reason to discard the larger reform package. Many of the larger bill’s features — such as protecting early, mail-in and drop-box voting — have enjoyed bipartisan support over the years. Indeed, the last renewal of the Voting Rights Act won the support of every Republican senator voting when it was most recently renewed in 2006 by a tally of 98 to 0. We should not let Republicans’ newfound intransigence stand in the way of this common-sense package.
Nor should we heed those who warn that the filibuster will block the larger voting rights package but not an ECA fix. The filibuster rules have been modified more than 160 times to make the Senate work better. They were changed again just last month to pass an increase in the debt ceiling. Surely establishing a federal democracy floor — a set of minimum standards for federal elections — is no less important. The answer to critics on this point is that we must try for another modification to protect our democracy, and key senators are discussing just that.
For all these reasons, no one should fall for the ECA bait and switch. However well intended or even needed, clarifying the language of the ECA would not deal with the democracy crisis that our nation is currently facing. We need voting rights reforms first and foremost. Without them, ECA reform makes a mockery out of our democratic governance.
Fred Wertheimer is president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen our democracy, ensure the integrity of our elections and hold public officials accountable for their abuses.
Norman Eisen served as President Barack Obama’s ethics czar and ambassador to the Czech Republic and was special counsel to the House Judiciary Committee during the first Trump impeachment.