Comment: Reform of Electoral Count Act can start Biden’s reset

Changes to the ambiguous law have bipartisan support; passage would be a win for good government.

By Clive Crook / Bloomberg Opinion

Things are going badly for the president and his party, and with midterm elections drawing nearer, Joe Biden and the Democrats need a reset. Paradoxically, the collapse of their plan for a comprehensive overhaul of the country’s voting laws could provide an opening; though Biden’s posturing has made it harder to exploit.

The voting-reform legislation would have set national standards intended to make voting as easy as possible. It was a worthwhile initiative, on the whole, and would have rolled back new state laws that in many cases needlessly tighten the rules. But the president didn’t put it like that. He called them “dangerous new Republican laws plainly designed to suppress and subvert voting rights.” This is exactly the kind of overheated language that Biden needs to purge from his vocabulary if he wants to make progress.

If he does that, there’s a good chance he can build bipartisan support for a narrower, less controversial and much more valuable reform; of the Electoral Count Act. And if this new effort fails because of unyielding Republican intransigence, like last week’s did, persuadable voters should know whom to blame.

One of the oddities about the voting-reform bills that just died is that they touched on countless minute aspects of election management while failing to address the constitutional crisis that almost happened last January. The most potent threat to American democracy wasn’t the so-called insurrection, deplorable as that was. The greater danger was the possibility that Vice President Mike Pence might surrender to President Donald Trump’s demands and set aside the popular vote in seven states. Pence stood his ground, but there was no guarantee he would. The same situation could easily arise again.

For years dispassionate critics have attacked the law that regulates disputes over counting and certifying votes; the Electoral Count Act of 1887. Experts agree it’s a mess, and recent events prove how dangerous this could be. The law is muddled, ambiguous and allows far too much leeway for Congress and/or the vice president to override the popular vote. These opportunities for constitutional breakdown need to be shut down. A recent report from a House staff committee says how this might be done:

This report has proposed raising the ECA’s objection threshold, narrowing the vice president’s role at the count, ensuring that Congress receives each state’s timely, accurate electoral appointments, enacting new counting rules, addressing the denominator [i.e., defining the “whole number of electors” used in determining the majority], narrowing states’ ability to appoint electors after Election Day, and clarifying the scope of Election Day.

Yes, that’s complicated: There’s plenty to fight over, for those inclined to fight. Even so, this could and should be a bipartisan undertaking. Republicans are aware (or ought to be) that they too might find themselves on the receiving end of efforts to cancel popular votes, with a Democratic vice president standing in for Mike Pence.

Unfortunately, Biden and the Democrats have laid the groundwork for the next crisis by hyperventilating about the supposed onslaught of voter suppression. Biden was asked last week, before the comprehensive voting-reform bills failed, whether he would consider the 2022 midterm election illegitimate if they didn’t pass. He answered: “I’m not going to say it’s going to be legit. It’s — the increase and the prospect of being illegitimate is in direct proportion to us not being able to get these — these reforms passed.”

Trump couldn’t have put it better. The risk that 2024 will be a repeat of 2020, with the teams swapping sides, is real.

Can a sufficient number of Democrats and Republicans in Congress agree that recurring constitutional crises might be, at the very least, problematic? If so, can they pivot from reflexive opposition to anything the other side suggests? As the passage of the infrastructure bill showed, allowing the enemy a share in success is often good government and occasionally even good politics.

If Biden is going to lead this effort, he’ll have to moderate the line he took in his Atlanta speech, where he likened opponents of his voting-reform ambitions to outright racists. His attempt to clarify his position during last week’s news conference was comical — “I think Mitch [McConnell] did a real good job of making it sound like I was attacking them” — but it’s encouraging that he’s denying, however absurdly, that he meant to cause offense.

What about Republicans? Some are already on board. House Minority Leader Kevin McCarthy might be willing. Rep. Jim Banks, R-Ind., who leads the biggest conservative caucus in the House, has said he is open to reforming the law so long as it isn’t a Trojan horse for the Democrats’ bigger voting-reform plans.

Now that those plans are dead, it won’t be. So fix the Electoral Count Act.

Clive Crook is a Bloomberg Opinion columnist and writes editorials on economics, finance and politics. He was chief Washington commentator for the Financial Times, a correspondent and editor for the Economist and a senior editor at the Atlantic.

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