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Trump-resistant, not Trump-proof
Reforms to the Electoral Count Act are just a first step.
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By Noah Berlatsky
There’s a strong chance that Congress will reform the Electoral Count Act this week. It has taken two painful years, but legislators are finally addressing some of the key structural weaknesses in the US electoral system that former President Donald Trump exploited during his coup attempt.
The proposed reforms, which are buried in the omnibus spending package being debated, are designed to deny Trump or a future would-be despot like him at least some of the strategies he used to try to overthrow the 2020 presidential election results.
First, the reforms would require that any challenge to an elector must have the support of 20 percent of the chamber where the challenge originates. Currently, an elector can be challenged by just one representative. The reforms would also codify the vice president’s role in certifying elections as strictly ceremonial. Recall that Trump had demanded that his vice president, Mike Pence, use his position to overturn the legitimate results and approve alternate slates of electors. (In seven states, Republicans had submitted alternate electors, who said they would vote for Trump in contravention of their state’s popular vote.) The legislation would also require that every slate of electors bear the state seal and be verified as authentic.
This isn’t just a Democratic initiative. Greg Sargent of the Washington Post notes that “a bipartisan group of senators negotiated these reforms for months with the support of Senate Minority Leader Mitch McConnell (R-KY), and they will likely be backed by many or even most GOP senators.” A seemingly critical mass of Republican senators recognize the threat that Trump’s coup attempt represented and are taking actions to prevent it from happening again, even if they’re too cowardly to publicly denounce the former president.
House minority leader Kevin McCarthy, by contrast, recognized the danger that Trump posed and decided to take actions to boost him anyway. In the days after the January 6 insurrection, McCarthy said Trump “bears responsibility” for the “mob rioters.” But since then he’s taken about every opportunity possible to kiss Trump’s ring. In return, Trump has supported McCarthy’s bid to become the next House Speaker. McCarthy has even tried to sabotage the January 6 commission’s investigation of the coup attempt.
McCarthy is hardly alone in his obsequiousness. Other party leaders have largely fallen silent as the party’s rank and file has decided that the insurrection was a “legitimate protest.” Lawmakers who voted to impeach Trump have largely been purged from the party.
The party’s continued antipathy to democracy is dangerous because many of the tactics Trump used to try to block Biden’s election in 2020 can be used again.
Trump, for example, pressured state secretaries of state — the people responsible for certifying election results. They can order audits, which can slow certification, or they can simply refuse to accept the popular vote as legitimate. Four days before the January 6 uprising, Trump phoned Georgia Secretary of State Brad Raffensperger and demanded that he “find 11,780 votes” for him. Raffensberger refused. But Republican Secretary of State candidates in many other states made it clear they would have complied.
In line with Trump’s efforts to overturn election results at the state level, Republicans have also pushed a dubious legal theory called the “independent state legislature theory.” This theory holds that state legislatures have virtually unchecked power to control elections. It would allow legislatures to violate state constitutions in passing gerrymandering and voter suppression laws. It could also allow them to overturn election results in some extreme interpretations — a frightening thought, since many Republican state legislators still insist Biden lost in 2020.
In mid 2021 there was real reason to think that GOP opposition to democratic norms could lead to a constitutional crisis in 2024, with many state legislatures and attorney generals blocking certification. The unexpected 2022 Democratic victory has provided a cushion. Republican election-denier candidates for secretary of state lost in every purple state they tried to win, including Minnesota, Michigan, Arizona, New Mexico, and Nevada. Election denying gubernatorial candidates in Pennsylvania and Arizona also lost. Republicans still control legislatures in contested states such as Georgia and Arizona, but Democrats are in a much better position to preserve democracy than most analysts imagined they would be two months ago.
Reforming the Electoral Count Act provides a further backstop. That’s important both because it gives less leeway for anti-democratic meddling, and because it shows that some in the GOP at least believe it is good policy to, in Sargent’s words, “Trump-proof” the next election.
Again, this is good news. Unfortunately, it’s not good enough.
First, the Electoral Count Act reforms still need to pass. But even if they do, many in the GOP — including Trump, who on Tuesday described the proposed reforms as “one big Scam!” (see his Truth Social post below) — remain committed to election denial and other forms of electoral manipulation.
Ron DeSantis, who is leading Trump for the Republican nomination in some recent polls, staged high profile arrests of voters who had been told by officials that they were registered to legally cast ballots. This is an egregious voter suppression technique, meant to terrify people who are registered to vote that they may be targeted by the state for retribution.
Meanwhile the radical right Supreme Court appears poised to gut what remains of the Voting Rights Act and the 14th Amendment, opening the door to even more brutal disenfranchisement of Black voters.
In contrast to GOP eagerness to roll back voting rights, Democratic pushback is often wary and uncertain. Conservative Democratic senators like Joe Manchin and Kyrsten Sinema (who recently left the party to become an independent) prevented filibuster carveouts for voting rights legislation. Now with the GOP about to take control of the House, there’s basically no chance that Congress will be able to act as the Supreme Court erodes voting protections.
Thanks to electoral victories and tentative legislation, Democrats have been able to put off an authoritarian reckoning. But a significant faction of the GOP still hates democracy and is still working to undermine it. Electoral Count Act reforms are a small tentative barrier against authoritarianism — perhaps necessary, but by no means sufficient, especially if Trump or a Trump-like candidate ends up being the 2024 Republican nominee.
Notes from Aaron
— My week has been dominated by continued interest in the story surrounding my Twitter suspension (and reinstatement), but I did carve out time to live-tweet the January 6 committee’s final hearing on Monday (you can see my thread starting here). If you missed it or any of the previous hearings, the committee put together a compelling 12-minute video highlighting key evidence and testimony from its investigation. I clipped the whole thing and posted it to YouTube. Watch it here:
— Fast Company asked me to put together a piece exploring what my Twitter suspension in particular and Elon Musk’s erratic stewardship of the company in general means for independent journalists and creators like me who have relied on the platform. I also discussed the evolution of my career and how I got into video journalism in the first place. Check it out:
— I jointed Jill Wine-Banks and Victor Shi on their podcast Tuesday to talk about social media and journalism. It was a fun discussion. Here’s the video:
That’s it for today. But …
Public Notice contributor Thor Benson was able to conduct an interview with Linette Lopez, the Insider journalist who continues to be suspended from Twitter for seemingly no reason beyond the fact that she’s conducted hard-hitting investigations of Elon Musk’s companies. I’m planning to publish it as a Q&A tomorrow in a special Thursday edition of Public Notice, so stay tuned for that. Then I’ll be back with another newsletter Friday before taking a short holiday break. (I’m going to take Christmas off, so there will be no newsletter on December 26.)
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