This Congress absolutely should not adjourn until it passes a reform of the Electoral Count Act that now so confusingly governs the process of certifying presidential election results. Especially because time is of the essence, perfect reform must not be made into the enemy of good reform.
Primary election campaigning will begin as soon as May. If Electoral Count Act reform is punted away until then, chances are high that people on all sides will approach reform with more of a desire to game the system for perceived short-term political advantage than to provide a process that is fair, neutral, and workable.
As we have editorialized before, the current Electoral Count Act is a hot mess. Its language is archaic, convoluted, and sometimes self-contradictory. Former President Donald Trump and some of his advisers took advantage of these confusions by falsely asserting the vice president and state legislatures possess powers they don’t actually have. Apparent loopholes, most of them illusory but still useful for nefarious actors to exploit, can contribute to deliberate mischief and harmful conspiracy theories that undermine public faith in the constitutional system.
The Electoral Count Act’s deficiencies created confusion in the 2000 election between George W. Bush and Al Gore. More recently, they contributed mightily to the Jan. 6 incursion at the Capitol by violent rioters and conspiracists.
The law must be rewritten to take into account modern technology, modern language, and, frankly, basic common sense. Most members of Congress of goodwill agree on that. The question is how? The House and Senate each have passed reform bills with strong bipartisan majorities. The two bills differ in some respects, but none of the differences are important enough to scuttle the bill or negate the need for reform, nor are the differences between the two bills more important than the commonalities.
Because this Congress will adjourn by month’s end (and probably sooner), the time for haggling over comparatively minor differences is limited. The current law is so bad that any significant improvements are worth passing now, even if not every jot of the revised procedures is to everyone’s liking. If it takes attaching the necessary reforms to a must-pass budget bill, as some senators suggest is in the offing, that would be acceptable.
Toward that end, the two chambers should agree on a bill that contains three major improvements. First, reorganize and reword the entire statute to remove the double and triple negatives and the convoluted sentence structure. Second, clarify that the vice president’s role in presiding over the electoral vote count is merely ministerial, not discretionary (much less arbitrary). Third, limit “nuisance objections” to a slate of electors by allowing consideration of electoral challenges only if lodged by a significant minority of Congress, not just one senator and one representative.
Both chambers should be willing to pass any bill that contains these three improvements and that otherwise sets up related procedures that are workable, even if not to someone’s ideal. Further adjustments for future presidential election cycles could be passed by future Congresses, but these three changes are essential in order to avoid a repeat of the abomination of Jan. 6, 2021.