In Our View: Time is right to update Electoral College Act

More than 19 months after extremists stormed the U.S. Capitol, several facts about the event and the chaos surrounding it are indisputable.

• Then-President Donald Trump, claiming the 2020 presidential election was fraudulent, urged officials in several states to change their count of the votes. “All I want to do is this: I just want to find 11,780 votes,” Trump told Georgia Secretary of State Brad Raffensperger, a fellow Republican, in a phone call that was recorded. “There’s nothing wrong with saying, you know, that you’ve recalculated.”
• Trump acolytes concocted a plan to submit fake electors as the authentic electors in seven states, hoping to swing the results of the Electoral College. Trump lost the electoral vote, 306-232.
• Trump privately and publicly implored Vice President Mike Pence to reject Congress’ count of the electoral votes. Pence rightly noted that it was not within his constitutional power to do so.

When those efforts failed, Trump urged his supporters to march on the U.S. Capitol, despite being informed that many of them were armed. Trump might or might not be to blame for the resulting violence; we will leave that argument for another time. But his attempts to undermine a constitutionally mandated process are inarguable.

Because of that, and because the United States barely avoided a constitutional crisis, Congress must reform the Electoral Count Act of 1887, which governs presidential elections in an arcane and outdated manner.

The law followed the disputed presidential election of 1876. “The crafters of this law unfortunately did a terrible job,” Rebecca Green of the William & Mary Law School told NPR. “Some of the processes don’t make sense in the modern world.” An analysis from the National Task Force on Election Crises assessed that the legislation is “extraordinarily complex” and “far from the model of statutory drafting.”

In more direct terms, Sen. Roy Blunt, R-Mo., says: “The Electoral Count Act of 1887 just turned out to be more troublesome, potentially, than anybody had thought. The language of 1887 is really outdated and vague in so many ways. Both sides of the aisle want to update this act.”

Now, after months of negotiations, Congress is considering revisions. Members should act quickly to codify the importance of counting popular votes and counting electoral votes with integrity.

As an election law expert at The Ohio State University said earlier this year: “The time to address (these problems) is now. Now is the maximum veil of ignorance: where the two political parties don’t know exactly what the lay of the land is going to be in ’24 and ’25, and so there’s a greater chance of bipartisan consensus on the clear procedures for governing the process.”

Proposed changes would include clarifying the vice president’s role in certifying the vote count as “solely ministerial”; increasing the threshold for challenging a state’s slate of electors; and stipulating that governors or other state officials, determined by state law, would have authority for submitting a slate of electors.

The bill is imperfect. Some 139 Republicans in Congress challenged electors in one state or another, demonstrating that chaos again could ensue. And election deniers have made inroads in many state primaries toward election to Congress or state executive positions. It is difficult to legislate against a sharp disconnect with reality.

But as an incremental step toward avoiding a constitutional crisis, an update to the Electoral Count Act is warranted.