More than a year after the attack on Capitol Hill, President Biden and congressional Democrats still seem a long way from putting in place strong safeguards against another attempt to cancel a presidential election.
One reason is obvious: There isn’t enough support in the Senate for Democrats to pass the two voting rights proposals Mr. Biden advanced in his speech in Atlanta on Tuesday.
But there’s another less obvious reason: Neither the suffrage bills nor the emerging bipartisan effort to reform the voter count law are sure to close some of the most likely avenues of electoral subversion.
While the various legislative avenues could protect voting access or deliver on the promise of clarifying how Congress counts electoral votes, the proposals are largely silent on a crucial period – the period between the close of ballots in November and January, when Congress meets to count the electoral votes. voice. This is when election administrators take care of the once routine activity of counting and certifying election results.
Many analysts believe the electoral process could be most vulnerable during this time, when the actions of a handful of officials could precipitate a constitutional crisis. The risks were evident after the last election, when former President Donald J. Trump and his allies relentlessly sought to persuade election officials to refuse to certify results or invalidate ballots. Virtually no election administrators have joined Mr. Trump’s efforts. A friendlier voice might answer the phone the next time a president calls a secretary of state looking for 11,000 more votes.
Yet the murky workings of tabulating and certifying the vote have received less attention, whether in legislative proposals or in the media, than the spectacle of violence on Capitol Hill or the flurry of news Republican laws to restrict access to the vote.
The two legislative avenues — the Free Suffrage Act and the John Lewis Advancing Voting Rights Act — that the president promoted on Tuesday offer at least some protection against electoral subversion.
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The Free Suffrage Act has evolved significantly since the summer, when its predecessor contained almost no provisions to address the issue. Now, it attempts to address the many Republican election laws that target poll workers and nonpartisan election officials, while including other provisions that indirectly protect the vote counting process — including paper ballots and law enforcement requirements. chain of custody, and safeguards against rejection of absentee ballots due to a missing security envelope or inaccurate signature match.
But the proposed laws do not regulate the vote certification process – the focus of Mr Trump and his allies as they tried to overturn the last election. Although their attempt ended in failure, some of their efforts came close enough to represent a credible avenue for future electoral subversion.
An example is the certification of elections by local election administrators.
In Wayne County, Michigan, which includes the Democratic-majority, black-majority city of Detroit, two Republicans initially blocked certification in 2020 before quickly backtracking. And one of two Republican members of a Michigan statewide board of directors declined to certify the results. If the other Republican on the board had done the same, Michigan would have failed to certify — and it’s unclear what would have happened as a result.
Next time the result might be different.
Today, Republicans who believe the 2020 presidential election was stolen are poised to assume greater power across the country, whether it’s sitting on local election commissions or winning. or to run for the posts of Secretary of State. With Republican voters remaining loyal to Mr. Trump, many GOP officials may have a very different understanding of what voters expect of them compared to the last election.
Similarly, the Democratic voting rights bills would do little to guard against other avenues Mr. Trump has taken to invalidate the 2020 election, such as lobbying the vice president and Republicans. of Congress to ignore or overthrow Electoral College delegates, or pressure state legislatures to ignore the certified election result and nominate Trump voters.
The Free Suffrage Act’s anti-gerrymandering provisions have been interpreted as providing indirect protection against a congressional effort to nullify a presidential election, on the assumption that doing so would reduce the likelihood of Republican control of Congress.
But even that provision seems to be of diminishing utility, as Democrats seem poised to gerrymand enough Democratic-leaning seats in New York, Illinois, and other states to ensure a relatively fair national struggle. for congressional control. And the proposal does not include a ban on state legislative gerrymandering, a tactic Republicans have sometimes used in states like Wisconsin, Georgia or Texas to create majorities so lopsided it’s plausible to imagine how there could be enough support to overturn a closely contested election.
Unlike Democratic suffrage bills, an attempt to reform the Voter Count Act — the 1887 law that established the procedures for counting electoral votes — might be more likely to more directly address the risk of an intentional campaign to reverse the result of a certified congressional election.
Over the past few weeks, various lawmakers from both parties in the House and Senate have been mulling possible solutions to the law. Sen. Mitch McConnell, Republican of Kentucky and Minority Leader, has signaled openness to the law’s review, though many progressives see the push as part of an attempt to derail their own policy initiatives. of voting rights.
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What is redistricting? It is the redrawing of the boundaries of congressional and state legislative districts. This happens every 10 years, after the census, to reflect population changes.
These talks are still in their infancy, so it’s still too early to gauge what a final version would or would not accomplish.
At a minimum, reforming the voter count law would likely clarify the vice president’s role in counting electoral votes and make it more difficult to void legal voter rolls, while presumably preserving the ability for Congress to override an illegal voters list. But it wouldn’t protect voting access or curb gerrymandering, like the Democratic proposals. It also might not protect the process of tabulating and certifying the results, at least not before Congress meets to count the electoral votes.
And while the violence on Capitol Hill has made the electoral vote counting process the most vulnerable element of electoral certification, it may not be the most likely path to electoral subversion. That might as well be the most likely way to stop him. Kamala Harris, not Mike Pence or another Trump ally, will be vice president in 2024. There are at least a dozen Senate Republicans — and possibly many more — who seem highly unlikely to acquiesce to a brazen push to overthrow a legitimate voters list. Even Mr. McConnell doesn’t seem likely to accept it.
A more serious threat of subversion could emerge earlier in the process, if state officials invalidate or nullify the outcome of a free and fair election without violating state laws, perhaps by refusing to certify a result and send a single list of voters to Congress. The burden on Congress would be reversed: democracy would henceforth depend on congressional intervention and the cancellation of the voters list. Without simultaneously safeguarding the vote tabulation and certification process, making it more difficult to cancel a legitimate voters list would risk making it too difficult for Congress to cancel a subverted list.
It is possible that an eventual proposal to reform the electoral count law will succeed in balancing these competing risks. Lawmakers seem aware of the problem; some scholars have thought about it. But despite a year of focusing on threats to democracy, there is still no concrete legislative proposal to close the avenues Mr. Trump took to overturn the last election.