The Washington Post – Opinion:
A victory to secure elections is still possible.
By Jennifer Rubin, Columnist – February 7, 2022
Lets see how far senators can go to prevent election chaos.
Forget what Sen. Joe Manchin III (D-W.Va.) says; watch what he does. And right now, he seems fully invested in the bipartisan negotiations to reform the Electoral Count Act. This is good news for democracy.
Appearing with Sen. Lisa Murkowski (R-Alaska) on CNN’s “State of the Union” on Sunday, Manchin declared: “I think absolutely it’ll pass. Now, there will be some people saying it’s not enough. There will be some people saying it’s more than what we should do or we don’t need it.” He added that “what we’ll do is try to bring them all together and say, ‘Listen, this is what we should do because this is what caused the problem. And it’s what we can do. So let’s do that.’
”The “problem” he references was that the defeated former president and scores of Republican allies — assisted by unscrupulous lawyers such as John Eastman — believed members of Congress and the vice president had the power to interrupt the tabulation of the electoral college vote, throw out votes for the winner (Joe Biden) and toss the election back to the House, which by unit vote (one vote for each state’s delegation) would keep the losing candidate (Donald Trump) in office.
Murkowski has her eye on a broader problem that also afflicted the 2020 election. “We want to make sure that … if you’re going to be an election worker, if you’re going to be there at the polling booth, you don’t feel intimidated or threatened or harassed,” Murkowski said. “We are sitting down, I think, again, as members in good faith to ensure that election integrity across all 50 states moves forward in a positive way.” Now, that sounds promising.
The prospect of any bipartisan election reform that could circumvent efforts to subvert elections should be applauded. Nothing precludes Democrats from coming back for more comprehensive voting reform at a later time if they have the votes, but to forfeit an opportunity to prevent a repeat of the 2020 debacle in 2024 would be foolish in the extreme.
Nevertheless, let’s be clear about the “problem” in 2020. There are no less than six aspects of the attempted coup that Congress can address.
First, Congress can clarify that the vice president has no power to overturn or alter the electoral college result. Former vice president Mike Pence correctly affirmed this on Friday in a rare rebuke of his former boss. Congress should remove any doubt.
Second, Congress can raise the threshold for challenging electoral votes to a higher percentage. Perhaps a three-fifths majority (the same needed in the Senate for cloture) would be appropriate.
Third, Congress must amend the ECA to make clear that state legislatures do not have the power to send an alternative slates of electoral voters. This would essentially repudiate the radical “independent state legislature doctrine,” which postulates state legislatures can choose electors however they want, by clarifying that the language of Article II, Section 1 of the Constitution (″each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …”) and the 12th Amendment do not allow the state to substitute a new method of selecting electoral votes after an election conducted by popular vote.
Specifically, ECA reform should amend the portion of the ECA that allows a state to submit an alternative slate when the state has “failed” to make a choice of president on Election Day. This can either be eliminated altogether or clarified to apply only when natural disaster has made voting impossible. (It is noteworthy that elections were conducted during every American war, including the Civil War.)
Fourth, as Murkowski notes, Congress must address the epidemic of threats, intimidation and arm-twisting of state officials in an attempt to alter the 2020 outcome (including by the losing presidential candidate). All such actions should be designated as felonies punishable by serious jail time. Moreover, election officials should be protected from criminal charges in instances in which they made a good-faith attempt to assist voters and from removal during an election count except for good cause. This should apply to all federal elections, not merely presidential contests.
Fifth, legislation can specify a speedy process for challenges to election results through the federal courts. For example, reform could specify that the D.C. Circuit would review cases (with clear and convincing evidence). This would avoid a repeat of the plethora of frivolous litigation trying to overturn election results in 2020. Losing parties should also be obligated to pay the states’ costs and legal fees.Finally, Congress can set legislative standards for paper ballots and neutral election audit procedures to stem any more phony audits engineered to undermine confidence in results.
All of these problems were apparent in the 2020 election and its aftermath. We might now have a real opportunity to correct these glaring shortcomings in a bipartisan, noncontroversial manner. Giving senators the space to negotiate the most comprehensive bill possible would be wise. If legislation addressing all or most of these issues emerges, the country should consider itself fortunate to have dodged a bullet aimed at the heart of our democracy.
Jennifer Rubin writes opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump.“