The Lessons of the Electoral Count Reform Act: Next Steps in Reform

Third, nobody could argue that reform of the Electoral Count Act would have the effect of advantaging one party over the other. Each party understands perfectly well that control of Congress will shift, as will the identity of the vice president. And the same is true of control of state legislatures that might be preparing “alternative slates of electors” to substitute for the ones approved by the voters. So the ECRA was blessedly free of the perceived danger of political engineering that would somehow sculpt the competitive landscape favorably for one party or the other into the future.

Fourth, the ECRA was not part of an ambitious package of electoral reforms (like the sprawling and ill-fated Protecting Our Democracy Act) that linked the success of any one type of relatively uncontroversial reform to the fate of many other somewhat more controversial reforms. To be sure, the ECRA was in the same Senate bill as presidential transition reform, but the latter discrete reform was related to the ECRA and relatively uncontroversial. When the fate of one reform is tied to a much more ambitious, controversial, and disconnected set of other reforms, reaching consensus obviously becomes much harder. 

Fifth, the issues that needed to be worked through for passage of the ECRA lent themselves to the constructive support and participation of a bipartisan community of legal experts. The aim of reform was to work with baseline agreements, such as the need to raise the thresholds for objections or clarify the role of the vice president, and then tackle more controversial questions, such as the role for the courts in resolving disputes over the actions of state legislatures and officials.

The authors stress that this could be done—and was done—without igniting the fatal objection that Congress was somehow radically altering institutional roles within the federalist structure. “In testimony before Congress, and on call to support the outstanding congressional staff in the drafting process, legal experts of different backgrounds, party affiliations, and ideological orientations could help work through these details,” they write. “In the end, for example, the federal courts were afforded a significant role, but within existing authorities, in hearing cases brought by presidential and vice presidential candidates. A meaningful reform that would not draw fire as “radical” in design stood the best chance of maintaining bipartisan support.”

They note that many of these criteria were the key to other governance reforms late last year—on presidential transitions, inspectors general, and presidential transparency about international agreements. “In our view, these criteria for reform suggest the potential for agreement in the next Congress on reform in at least three areas: emergency powers, vacancies reform, and war powers,” they write, concluding that:

The passage of the ECRA suggests there are achievable goals of democracy reform even as polarization retains its grip, we now have a divided government, and a presidential election is less than two years away. The way forward will not, of course, be easy, and a broad agenda like the one for which we argued in “After Trump” will have to be trimmed as these circumstances require. But the narrowing of these objectives in the near term does not mean that they are somehow less consequential. And the success of any one reform invites consideration of the next steps. It keeps the entire reform enterprise going.