Congress must reform the Electoral Count Act. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 
Brennan Center for Justice The Briefing
Congress has returned to the Capitol. Such lame duck sessions, after an election but before the new term, are rarely consequential. This one will be. Lawmakers must keep the government funded and continue supporting Ukraine’s struggle against Putin’s aggression. And they must take a critical step for the future of our own democracy: reforming the Electoral Count Act.
That’s the creaky 19th-century law that sets out procedures for counting electoral votes. It’s complicated, vague, and poorly drafted. That said, for 133 years, it remained a quaint relic. It helped that for nearly all that time, the popular vote effectively determined the presidential winner. Alas, as we all know, in 2000 and 2016, the popular vote loser nevertheless became president because of the Electoral College. It nearly happened in 2004, too, when John Kerry would have prevailed if a few thousand votes had switched in Ohio, even though George W. Bush handily won the popular vote.
Throughout all this time, candidates of both parties respected the voters’ will. The peaceful transfer of power is a hallmark of American democracy. Taking the oath in 1981, Ronald Reagan rightly called it “a near miracle to many of the world’s inhabitants.”
That honorable tradition ended in 2020 when Donald Trump employed a tortured reading of the Electoral Count Act in his doomed attempt to reverse the election. Trump’s maneuver was illegal, but it revealed that the act is a vulnerability. It must be clarified and strengthened to prevent a repeat of 2020.
A bill pending in the Senate is a significant move in the right direction. It would confirm that the vice president has no power to alter the electoral vote count. It would raise the threshold for how many House and Senate members are needed to object to a slate of electors — currently, it is just one person from each house. It would ensure a judicial remedy if a state government unlawfully refuses to certify election results. And it would prevent state governments from changing rules after an election has been held.
Happily, this sensible fix has broad bipartisan support — these days, unusual for an election measure. I’m optimistic Congress will act, either passing the bill as a stand-alone measure or attaching it to a larger piece of legislation. Significantly, Senate Minority Leader Mitch McConnell backs the bill, as do many of his Republican colleagues. It’s the first bipartisan acknowledgment that election subversion is a real threat.
Of course, this is just a first step to renewing and repairing our democracy. Lawmakers in Congress and the states still must protect the right to vote and thwart gerrymandering. The reform won’t even fully address the poisonous legacy of the January 6 insurrection. Voters last month made clear they reject election lies. Now politicians must respond. Election denialism will be with us as long as large swaths of Republican politicians continue to spread lies about the 2020 results or the security of our elections more broadly.
But for now, it’s critically important that Congress use the next few weeks to fix the Electoral Count Act. It can’t wait until the divided, and likely divisive, next Congress. Again, let’s heed what Ronald Reagan told us in 1981 about the peaceful transfer of power: “Freedom is a fragile thing, and it’s never more than one generation away from extinction.”

 

Hand-Counting Votes Is a Proven Bad Idea
Some local and state politicians are lobbying to replace voting machines with hand-counts, pointing to baseless conspiracy theories as justification. But that is the wrong way to safeguard our elections. “Instead of returning to error-prone and impractical hand-counting, we should be working on improving and modernizing our machine-based systems across the country, protecting them from cyberattacks and updating equipment,” Alice Clapman and Ben Goldstein write. Read more
A Congress for the 21st Century
Online misinformation plagued the midterms. Despite the problem’s persistent and growing nature, lawmakers have yet to pass substantial legislation to address it, partly because both the House and the Senate lack the necessary committees and expert staff to develop comprehensive regulations. “It’s up to Congress to establish a tech committee and otherwise make the committee structure meet current demands,” Maya Kornberg writes. THE HILL
Can the Jury Trial Make a Comeback?
In recent decades, the percentage of federal civil cases decided by jury trial has plummeted — largely because it is a slower, less predictable, and more expensive way to resolve a dispute. Brennan Center fellow Andrew Cohen and University of Illinois law professor Suja Thomas discuss whether this Seventh Amendment right could see a resurgence and how to preserve the role of the jury in our legal system. Read more
States Advancing Eighth Amendment Rights
After the Supreme Court watered down juvenile defendants’ protections against “cruel and unusual punishments” last year, several state courts moved in the opposite direction, in part by citing their state constitutions. “These cases are strong reminders that there is no single way forward in constitutional development,” Douglas Keith and Madiba Dennie write. READ MORE

 

Coming Up
 
Wednesday, November 30, 6–7:45 p.m. ET
 
Join this live panel for a discussion of the so-called “independent state legislature theory,” which is front and center in Moore v. Harper, one of this Supreme Court term’s most watched cases. Prominent scholars and practitioners will take on the constitutional underpinnings of the independent state legislature theory, the historical origins of the relevant constitutional clauses, and the challenges that a Supreme Court decision endorsing this theory would present for our democracy. RSVP TODAY
 
Produced in partnership with the New York City Bar Association
Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

 

News
  • Michael Li on ongoing redistricting fights // WASHINGTON POST
  • Andrew Garber on the impact of a shorter time frame on Georgia’s Senate runoff // NBC
  • Chisun Lee on New York’s new public campaign financing system // SPECTRUM NEWS 1