We Can’t Let Our Elections Be This Vulnerable Again
No law can stop reckless people from trying to thwart the popular will, but we should still address the obvious weak spots in our system.
The 2020 election and its aftermath have laid bare an unhappy truth: Many of the familiar procedures for translating the people’s will into the choice of a president depend on norms of behavior, not laws. Just this past weekend—two months after Election Day—remarkable efforts to mess with election results became apparent, including the revelation of a recording of, on Saturday, President Donald Trump potentially criminally pressuring Georgia Secretary of State Brad Raffensperger to “find” more than 11,000 votes to flip Georgia’s election results from Joe Biden to the president. And well over 100 Republican representatives and about a dozen Republican senators appear poised to object to the counting of Electoral College votes on Wednesday for states that Biden won, despite a complete lack of evidence that the results were marred by fraud or irregularities. These efforts are very serious—and very dangerous.
If not for Biden’s significant margin of victory over Trump and for the courageous, politically risky actions of many Republican and Democratic election administrators and elected officials, this Republican attack on American democracy might well have been successful, securing an illegitimate second term for Trump.
To remove the potential for this sort of gamesmanship in certifying and counting each state’s votes for president, the country needs to adopt a number of measures in the next few years to eliminate the power of individuals to interfere with election results. This can be done without opening up larger constitutional issues, such as whether to keep or do away with the Electoral College. Americans shouldn’t have to know the inner workings of the canvassing board of Wayne County, Michigan—or depend on representatives and senators to accurately count votes as states have reported them to Congress—to figure out who will be president.
The backdrop for these urgent reforms is Trump’s extraordinary effort to delegitimize the election results. Amid the pandemic, the president attacked voting by mail, the safest means of voting to avoid spreading infection. Despite his claims that this shift would open floodgates of fraud, 2020 was a strikingly clean election.
After Biden decisively beat Trump, by a margin of 306 to 232 in the Electoral College and by more than 7 million votes nationwide, the president endorsed wild claims about hacked voting machines in Georgia and put pressure on state officials, legislative leaders, and even local canvassing boards in swing states such as Georgia, Michigan, and Pennsylvania. Trump and his allies filed more than 50 lawsuits, none of which changed results in a single state, and his attacks on the election persisted even after then–Attorney General Bill Barr said that he hadn’t “seen fraud on a scale that could have effected a different outcome,” and Senate Majority Leader Mitch McConnell and other Republican leaders congratulated the new president-elect.
Trump nonetheless continued to pressure Republican state legislators to meet and declare a new slate of electors in his favor. When the legislatures refused, Trump’s team organized rogue Electoral College meetings in disputed states to “vote” for Trump. Those fake Electoral College votes may have been sent into Congress for opening by Vice President Mike Pence in his role presiding over the counting of the votes on Wednesday.
There are not enough rogue Republican members of the House and Senate who can derail a vote count for Biden on Wednesday, but they will make a lot of noise objecting, and they could drag out the final vote count for hours. It will be messy and ugly, especially with Trump repeatedly calling for “wild” protests in the capital on Wednesday, but in the end it won’t derail the outcome.
Unfortunately, the country might not have enough principled people to stand up for the rule of law and the accurate counting of votes next time. So it must get rid of extra discretion wherever it exists in determining election results.
For starters, states should eliminate those canvassing boards that serve only a ceremonial role in approving vote totals. The rules for vote counting differ by state, but the general principle should be that only those local and state election administrators who are actually involved in ballot counting should determine the vote totals, subject to judicial oversight. States should eliminate additional bodies that serve no necessary oversight role and can only make mischief.
More significant, states should also pass laws explicitly barring state legislatures from choosing rival slates of electors—except under very narrow circumstances. The Constitution’s Article II gives state legislatures broad powers to set the rules for choosing presidential electors, but anything other than giving that choice to each state’s voters would be profoundly antidemocratic.
The trouble is, federal law gives state legislatures the ability to name a slate of presidential electors after a popular vote has occurred in a “failed” election. Writing recently in The New York Times, Richard Pildes of NYU’s School of Law called this provision a “loaded weapon,” noting that it is “the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors.”
To address this, states should pass new laws that define “election failure” narrowly, such as in the case of a natural disaster that physically prevents voters from casting their ballot for president. Congress, too, must limit and define what counts as a failed election. By expressly declaring via law that legislatures have no power to choose electors except in exceptionally rare and narrow circumstances, states will make future efforts to pressure legislators to overturn the will of the voters much harder.
The failed-election provision is part of a messy 1887 law called the Electoral Count Act. This law was passed following the hotly disputed 1876 presidential election between Samuel Tilden and Rutherford B. Hayes, in which several states sent dueling slates of electors to Congress. The act is supposed to provide procedures for sorting out the claims between such contested slates, but it contains many worrisome ambiguities and gaps that need to be remedied.
Benjamin Ginsberg, a longtime Republican election lawyer, flagged some of these problems last month in The Washington Post. For example, if Congress refused to accept a state’s slate of electors for any reason, would that state’s electors be subtracted from the denominator of the 538 total Electoral College votes to determine whether a candidate got the required majority? That question matters a great deal, because if no candidate gets such a majority, the Twelfth Amendment specifies that the House of Representatives would then choose the president, under a rule giving each state just one vote, allocated by a majority vote of that state’s delegation. That deeply undemocratic outcome, with California and Texas having the same number of votes (one) as Rhode Island and South Dakota, is something that everyone should want to avoid. Even worse, Ginsberg notes, a norm-breaking House majority could refuse to seat some members of the minority party at the beginning of Congress’s term (which usually takes place on January 3) to manipulate which party holds the majority in each state’s delegation during the recognition of Electoral College votes (January 6).
Congress also needs to raise the threshold for objection to Electoral College votes. It should take more than the political posturing of a single representative and a senator such as Josh Hawley or Ted Cruz, who have promised to object on Wednesday as a way of burnishing their pro–Trump 2024 credentials, to trigger a full debate.
A final problem states should address, one that turned out not to be a problem in 2020 but that certainly could be in the future, is potential defections from the slate of electors chosen by each state—so-called faithless electors. The Supreme Court confirmed last summer in Chiafalo v. Washington that laws replacing or punishing such “rogue electors” are constitutional. States should follow suit and pass laws providing for the replacement of any presidential elector who would vote “faithlessly.”
No law can stop reckless people from trying to thwart the popular will, and if Republicans controlled the U.S. House, who knows if Biden would be taking office on January 20, despite winning a clear majority of Electoral College votes? But even so, we should address the obvious weak spots in our system. Clear laws—ones that narrow the opportunities for interference—can make antidemocratic attempts much less likely to succeed. Responsible citizens must push for changes now—before the next crisis.