GOP lawyer explains why our 'byzantine' election law is so dangerous — and everyone should want to fix it

Some Democrats have been warning that the Electoral Count Act of 1887 needs to be amended and strengthened before the 2024 presidential election in order to secure the result from those who would seek to overturn it. Benjamin L. Ginsburg, a veteran Republican election lawyer, argued in a recent article for the National Review that fixing the Electoral Count Act for the good of Republicans as well as Democrats.

In an op-ed published by the Washington Post on September 8, 2020, Ginsburg aggressively pushed back against then-President Donald Trump’s claims that the 2020 presidential election would be “rigged” and “fraudulent” if he didn’t win. That op-ed, not surprisingly, didn’t go over well in MAGA circles. Regardless, Ginsburg has maintained that Americans need to have faith in the United States’ elections, and his National Review piece stresses that strengthening the Electoral Count Act is crucial to the wellbeing of U.S. democracy.

“Donald Trump should want the Electoral Count Act of 1887 amended, and he should want it done even though…. some of his Democratic opponents may want the same thing,” Ginsburg emphasizes. “Designed to govern Congress’ tabulation of Electoral College votes — including disputes between the chambers — the aged law is a swamp of ambiguity. Its byzantine, vague and muddled provisions do not provide sufficient answers to crucial questions that could arise in a genuinely close election. Despite the fact that the former president’s attempts to exploit those shortcomings failed in 2020, he and all Republicans should be haunted by the blueprint that he has created for his opponents if he were to run for office again in 2024.”

Some liberals and progressives, over the years, have proposed abolishing the Electoral College — which is not something that the conservative Ginsburg favors. Ginsburg has been a staunch Electoral College defender, but he believes that the Electoral Count Act needs to be strengthened in order to make sure that the electoral vote count is fair to both Republicans and Democrats.

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“Republicans should not deceive themselves by thinking the current state of this law automatically works to their advantage,” Ginsburg writes. “While many of them used it offensively on January 6, 2021, they did so because they were trailing in Electoral College votes. They poked at real flaws, and while not successful because the vice president rebuffed Trump’s legally unsupportable command that the states’ certifications be rejected, Republicans did show how the system can be maneuvered.”

The attorney continues, “Republicans should be in favor of clarifying the system now, if for no other reason than they will not be in as strong a position as they were in 2020. For starters, a Democratic vice president will be presiding over the Senate when the Electoral College votes are opened. Suppose Trump runs again, and wins. Now, suppose Vice President (Kamala) Harris believes that Trump’s reelection represents an existential threat to the (country) and does what Trump couldn’t persuade Mike Pence to do.”

Ginsburg goes on to say that “fixing the ECA’s flaws” will benefit both Republicans and Democrats if the U.S. faces an “electoral stress test” in the future.

“Neither Donald Trump nor members of either party can accurately predict what will be to their advantage the next time the ECA becomes crucially relevant,” Ginsburg writes. “Providing clarity would be in the nation’s interest. The time to act is now.”

Ginsburg’s National Review article has received generally positive feedback from someone who often disagrees with conservatives: liberal Washington Post opinion writer Greg Sargent, who agrees with many of the attorney’s points in his column.

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“Ginsberg’s warning, which he issued in a piece for National Review, is that if we don’t fix glaring ambiguities in the ECA, we’re leaving ourselves profoundly vulnerable to future election subversion,” Sargent explains. “Some congressional Democrats are eyeing new reforms to the ECA, the New York Times reports. But as of now, no Republicans appear on board. As Ginsberg notes, Trump’s attack on the 2020 election was in large part an effort to exploit those very ambiguities. The ECA structures the process by which Congress counts presidential electors, and Ginsberg proposes numerous reforms.”

Sargent expresses doubts, however, that a lot of MAGA Republicans will agree with Ginsburg’s recommendations on “ECA reform.”

“To be clear,” Sargent writes, “Republicans should want ECA reform: It would become less likely that they themselves face pressure to subvert a future election, since pathways to this would have been closed off. But if they don’t, this will demonstrate again that their excuse for pursuing voter suppression everywhere — that they want to protect ‘election integrity’ — is bad-faith nonsense. ECA reform actually would boost ‘election integrity.’”