Preventing election theft is 'like playing whack-a-mole': journalist

05 August 2022

The events that followed the United States’ 2020 presidential election were unprecedented in U.S. history. Never before had an American president been voted out of office only to falsely claim that the election had been stolen from him and look for different ways to throw out or overturn the Electoral College results. And never before in U.S. history had supporters of the president who was voted out of office violently attacked the U.S. Capitol Building in order to prevent Congress from certifying the president-elect’s Electoral College victory. To this day, Trump and many of his allies in the MAGA movement have yet to admit the fact that President Joe Biden legitimately won in 2020, defeating Trump by more than 7 million in the popular vote.

Political comedian Bill Maher has warned that all hell could break out in the U.S. after the 2024 presidential election if Trump is the GOP nominee, loses, refuses to admit that he lost, and shows up on Inauguration Day 2025 demanding to be sworn into office. Maher fears that the United States’ next presidential election could be followed by a major constitutional crisis along with widespread violence and unrest, and he is hardly the only U.S. citizen who is seriously worried about 2024. Others are sounding the alarm as well, including a combination of Democrats and non-MAGA conservatives who have proposed strengthening the Electoral Count Act of 1887 in order to make sure that the 2024 election goes smoothly.

Journalist Russell Berman examines those efforts in an article published by The Atlantic on August 5. But Berman has a warning: strengthening the Electoral Count Act is challenging and “tricky.”

“Preventing the next attempt to overturn an election is a bit like playing whack-a-mole,” Berman explains. “Plug one gap in the nation’s rickety, interlocking system for counting votes — say, by ensuring that a power-hungry vice president cannot unilaterally declare his or her ticket the winner — and another pest seems to materialize immediately. Congress is confronting this reality as it tries to rewrite a 135-year-old law governing the final, fraught act of certifying the Electoral College results — the very statute that former President Donald Trump used as a pretext to demand that then-Vice President Mike Pence anoint him the victor on January 6, 2021. Last month, a bipartisan group of senators announced, to substantial fanfare, that it had reached an agreement to revise the 1887 Electoral Count Act. But closing off every path to subversion is proving to be a tricky task.”

Berman continues, “The legislation is modest in scope; its aims are not. The proposal’s authors believe that its enactment is necessary to guarantee that the violent insurrection that occurred last time around does not become a quadrennial affair.”

The bill is co-sponsored by centrist Democratic Sen. Joe Manchin of West Virginia, who has said “we have a duty to ensure that” the events of January 6, 2021 “never happen again.”

“Election-law experts across both parties agree that the Senate proposal, known as the Electoral Count Reform Act, would resolve legal ambiguities that Trump and his allies tried to exploit before the transfer of power,” Berman notes. “As written, the bill would clarify that the vice president, regardless of party, has only a ministerial role in presiding over Congress’ certification of the Electoral College vote. The proposal would also make it harder for members of Congress to raise objections to a state’s electors; doing so would require support of at least one-fifth of the members in each chamber, rather than just one in both the House and the Senate, as it stands now. Another provision seeks to head off rogue state legislatures by ensuring that they respect the outcome of their popular vote as determined by the laws that were in place at the time of the election.”

Democratic attorney Norm Eisen, during a hearing, described Electoral Count Reform Act of 2022 as “a significant step forward”; however, Eisen also fears that it “could invite unwelcome manipulation.”

“Eisen highlighted a pair of provisions that he said could be exploited by governors trying to ignore or outright reject the popular vote in their state,” Berman writes. “One would set a six-day window to challenge the certification of an election by a governor. The goal is to ensure that legal disputes are resolved in time for the Electoral College to meet in December and then for Congress to certify the results in January. But, Eisen pointed out, that time frame could actually play to the advantage of a governor who certified the wrong winner rather than the candidate who clearly won his or her state’s election…. Another provision Eisen flagged would bar states from declaring a ‘failed election’ while allowing them to change or extend their elections because of ‘extraordinary and catastrophic events.’”

Berman adds, “The point is to give states some flexibility to alter elections for legitimate reasons, as in the case of a terrorist attack or a natural disaster; the attacks of September 11, 2001, for example, occurred on a pivotal election day as New Yorkers prepared to choose their next mayor. New York City postponed its primary by two weeks. The bill, however, doesn’t clearly define what constitutes ‘extraordinary and catastrophic events.’ That, too, presents an opportunity for ‘mischief’ by election-denying state officials, Eisen warned. What if a governor alleged, without evidence, rampant voter fraud and deemed that ‘an extraordinary event’ that warranted a re-vote?”

Berman goes on to point out that “Eisen’s concerns are shared by another prominent Democratic election lawyer, Marc Elias.”

“Part of their complaint is the bill’s narrow scope: In order to win Republican support for any changes to election law, Democrats had to jettison their much broader dreams of enacting stronger protections for voting rights and minimum federal standards for access to the polls,” Berman observes. “But Eisen and Elias are also highlighting a potential flaw with the new proposal that may be impossible for Congress to fully rectify. For instance, the bill seeks to reduce the chances that the vice president, Congress, or a rogue secretary of state will mess around with or overturn election results.”

Berman continues, “In doing so, however, the legislation grants more authority to governors to certify a state’s electors. What if the sitting governor is corrupt? As Eisen was testifying Wednesday, vote counters in Arizona were determining whether Republicans had nominated one of the nation’s most steadfast election conspiracy theorists, Kari Lake, as the state’s next governor. In Pennsylvania, the GOP has already given its nod to a Trump loyalist, Doug Mastriano, who marched to the Capitol on January 6…. The question lawmakers must answer in the coming months is whether this new attempt to fortify America’s elections stops more mischief than it inspires.”

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