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Rick Hasen on why reforming the Electoral Count Act is necessary but not sufficient
“This is a five-alarm fire, and Democrats and Republicans are not acting like it is."
Democrats in Congress passed a flurry of legislation this summer addressing everything from gun violence to China’s domination of the semiconductor market to the climate crisis. But one important priority remains — doing something to make it harder for Trump (or the next Trump) to steal an election.
As the January 6 committee unravels Donald Trump’s attempts to steal power, a group of Democrats and Republicans in the Senate are working on reforming election laws to protect against future attempts to overturn them. They’re specifically working on reforming the Electoral Count Act, an 1887 law that dictates how electoral votes are to be counted.
Trump infamously tried to overturn the 2020 election through a variety of methods, including attempting to get former Vice President Mike Pence to throw out electoral votes from certain states. Sens. Susan Collins (R-ME) and Joe Manchin (D-WV) are working on reforming the Electoral Count Act to make sure the 2024 election and other future presidential elections will be safeguarded from that kind of chicanery.
Rick Hasen, a professor of law at UCLA who focuses on elections and democracy, has been writing about these efforts to reform the Electoral Count Act. He says Congress needs to get these reforms done.
“I think fixing the Electoral Count Act is both absolutely necessary and needs to happen now before Democrats lose control of one or both houses of Congress, and also not sufficient to deal with the threat of election subversion,” Hasen tells me.
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Hasen says the reforms that are being discussed would make it so Trump or someone like him couldn’t have the vice president simply declare that certain electoral college votes shouldn’t be counted or accept slates of fake electors.
“This would clarify that the vice president doesn’t have that power. It would also clarify that states can’t point to fraud that is unproven as a basis to throw out electoral results,” Hasen says. “That would be helpful. It would also deal with other potential ways of subverting the election that we didn’t see last time like, what if a governor decides to send a slate of electors that doesn’t match how the state has voted? It has certain judicial procedures to deal with that.”
That said, there are ways lawmakers could attempt to subvert an election that these reforms do not address. An elected official could do things to try to prevent people from voting, Hasen says, or they could interfere with how votes are counted. One reform he supports that could help deal with some subversion efforts would be requiring the use of paper ballots.
“Right now, there’s something like 9 or 10 percent of voters voting on wholly electronic voting machines, and I think that’s really dangerous in a situation where people don’t trust the machines and where the potential for hacking is always in the background,” Hasen says. “Having a piece of paper that can be counted by a court would help to prevent a dishonest election administrator from cooking the books. That’s not something that’s in the current version of the bill.”
Hasen would love to see legislation like the John Lewis Voting Rights Advancement Act pass to protect the right to vote generally, but is dubious that can get done as long as the filibuster is still a barrier. Another thing he finds concerning is that groups of election deniers are currently working on becoming poll workers.
“I think that’s profoundly dangerous. Some of the people who are doing this are well meaning, but they have been sold a bill of goods, and they’re going to be looking for fraud that doesn’t exist and potentially reporting things that are not fraud as fraud,” Hasen says. “I think there really is a danger there.”
Beyond what can be done at the federal level, Democrats need to work to safeguard elections at the state and local levels. American elections are quite decentralized, Hasen says, and anyone who cares about democracy needs to be getting involved to make sure elections are fairly conducted.
“I think this is a five-alarm fire, and Democrats and Republicans are not acting like it is. Our democracy has never been in more danger in the modern era,” Hasen says. “Democracy depends on losers’ consent — that people on the wrong end of the election believe it was fairly conducted. When you lose that, you lose your democracy.”
Congress should get its reforms of the Electoral Count Act done — and soon — but that shouldn’t be seen as a silver bullet. Elected officials will have to do more to make sure our elections are protected from those who would seek to undermine them. Maintaining a democracy is a constant struggle, and American democracy is currently being tested in fundamental ways. Whether it survives these tests will depend in part on how hard members of Congress are willing to fight for it.
A note from Aaron
I picked a hell of a Friday to log off.
After a very busy week last week covering the FBI search of Mar-a-Lago and its fallout, I went to Sioux Falls over the weekend to reunite with a college buddy I hadn’t seen since he came to visit me in DC the same weekend as Trump’s inauguration back in January 2017. We had a great time hanging out and catching up in a variety of dive bars, including Top Hat, where a photo I tweeted of a placard poking fun at Trump ended up going surprisingly viral.
But as a result of all that fun, I missed a lot of news, most of it having to do Trumpworld’s response to revelations that the FBI was searching Mar-a-Lago for, among other things, nuclear secrets.
So while I’ll have more to say about the Trump-FBI situation on Wednesday, I thought I’d take this opportunity to invite readers to weigh in. What unanswered questions do you have about the circumstances surrounding the Mar-a-Lago search? Are there any aspects of the story that you think haven’t received enough coverage? Are you surprised that, by and large, Republicans continue to publicly defend the former president?
Sound off in the comments!
That’s it for today
I’ll be back with more Wednesday.