Sometimes, it seems, the Senate is not 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 designed to make it harder to overturn the results of a presidential election. A direct response to Donald Trump’s multi-pronged bid to stay in power, the bill aims to prevent a future presidential candidate, including a losing incumbent, from following the same playbook.
At its heart, the bill is a major overhaul of the Electoral Count Act of 1887, which Trump and his legal team have tried to exploit to sow confusion over voter certification and electoral vote counting. Specifically, Trump pressured Republican lawmakers in key states he lost to reject the votes and send in fake voters lists in place of those won by Joe Biden. He then coordinated with allies in Congress to oppose Biden’s voter count and pushed former Vice President Mike Pence to dump those voters and, if necessary, move the election to the House of Commons. representatives, where Republicans controlled enough state delegations to keep him. in the office.
The bill would deal with each part of the plan. It would force states to choose voters according to laws that existed before Election Day and prevent state legislatures from overriding the popular vote by declaring a “failed election.”
The bill would specify that each state can send only one list of voters to Congress. This would require the governor (or other designated official) to certify the winning candidate’s voters by a specified deadline, in an attempt to prevent post-election manipulation. If a state tries to overturn that process, the bill sends the dispute to a panel of federal judges. Applicants can then appeal the judges’ decision to the Supreme Court on an expedited basis.
As for Congress, the bill clarifies that the vice president has only a “ministerial” role in voter counting and raises the bar for objections, from a single member in each house of Congress, to a fifth. of all members in both the House and the Senate.
I don’t know if 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 shuts down most avenues of post-election subversion in the current system. At the same time, it must be said that the reason all of this is possible – the reason Trump had the ability to overturn the election results in the first place – is the undemocratic aspect of the current system.
Even with the provisions of this bill in place, the Electoral College offers a number of opportunities for mischief.
The fact that an entire national election can garner a few thousand votes in a handful of states is a powerful incentive to restrict your opponents’ votes and meddle in the process 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 reverse the voting process and prevent access to the ballot boxes. And the fact that a legislature can, before the election itself, simply allocate voters to the candidate of its choice without any input from the public is a permanent and ever-present threat to electoral democracy.
There is also the effect of the Electoral College on how Americans conceptualize democracy. It “presents elections more as complex puzzles or games of logic than as singularly important moments of self-governance,” legal scholar Katherine Shaw notes in an article for the Michigan Law Review. Likewise, the ultimate nature of the winner-takes-all system overrides any nuanced understanding of the political geography of the United States. “We are color-coding the country in red and blue, eliminating the fact that Americans of all political identities reside in every county and every state,” Shaw writes. “This coding may well have spurred some of the electorate into accepting outlandish claims of voter fraud when a state like Georgia, which had been reliably ‘red’ for decades, moved to the ‘blue’ column. “.
You can see this psychological effect in the often impassioned reaction to the idea of a national popular vote for president. Many Americans sincerely believe that, for example, every Californian is a liberal from San Francisco and every Texan is a right-wing suburbanite from Dallas. They fear the dominance of “big states” as if each were a single uniform block of political influence or as if size and density determined the form of state politics. But this is not the case. And for most voters, residence in one state or another has almost nothing to do with their interests, opinions and political preferences.
The Electoral College makes it hard to see that every state contains a multitude of political perspectives, and that our democracy might be a little healthier if a Seattle Republican’s vote counted so much towards the outcome of a presidential election. than that of a Green Bay Democrat.
Despite the good things about this bill, the most important reform we can do for our presidential elections is to end the electoral college in its current form, whether it’s a national popular vote or the proportional distribution of voters (which already exists in both Maine and Nebraska) or a hybrid of the two.
We can and must patch the holes in the system we have. We should also recognize that it would be better, in the long run, to abandon the rules that make subversion a tempting option to begin with.
That said, the most important guarantee for our electoral system is not 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 he is entitled. And it’s a serious, perhaps existential problem for American democracy that so much of one of our two major parties just doesn’t want to play ball.