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Call us old fashioned, but we’re in favor of peaceful and orderly transitions of power. That is generally how presidential successions have gone over the course of our country’s history. There’s an election, the votes are counted, somebody wins, somebody loses, the loser concedes, and we do it all again four years later.
There certainly have been a few less than orderly transfers, like in 2000 when Al Gore challenged George W. Bush’s consequential Florida victory in court. Gore didn’t concede until December, but he did concede. Another notable case is the 1876 election, when disputes about the results in several states led to protracted confusion and controversy until a commission-led compromise saw Rutherford B. Hayes declared the winner just days before his inauguration.
Neither of these instances, however, devolved into a violent mob storming the U.S. Capitol after being directed there by the defeated president. What we collectively experienced as a nation on Jan. 6, 2021 was unlike any power transfer in our history. It must not happen again.
This is why the bipartisan push to reform the Electoral Count Act of 1887 (ECA), led by Maine Republican Sen. Susan Collins, is so critically important. The chaos that occurred that day was made possible in part by ambiguities in the ECA, an antiquated law that was actually passed in response to the 1876 election as an attempt to provide more clarity in the process. The law certainly hasn’t aged well.
It also took the manipulation and deception of Donald Trump to exploit those ambiguities in a way like never before. In his relentless push to sow doubt and overturn the results of the 2020 election, Trump and his allies went far beyond any previous ECA challenge. America has paid the price, and without action to update the law, the door will be left open for Trump or someone else to do it again.
So the fact that this bipartisan group of 16 senators has spent months developing this legislation is a big deal. So too is the fact that both Majority Leader Chuck Schumer and Minority Leader Mitch McConnell appear open to the effort. With nine Republicans as cosponsors, the ECA reform bill is already close to securing the 10 Republican votes needed to clear a filibuster (assuming all Democrats are supportive).
This issue is rife with legal technicalities and potential political roadblocks. But these 16 senators have taken the time and effort to work through them, and produced a bill that could help prevent a repeat of Jan. 6 chaos.
“From the beginning, our bipartisan group has shared a vision of drafting legislation to fix the flaws of the archaic and ambiguous Electoral Count Act of 1887,” the senators said in a joint statement Wednesday. “Through numerous meetings and debates among our colleagues as well as conversations with a wide variety of election experts and legal scholars, we have developed legislation that establishes clear guidelines for our system of certifying and counting electoral votes for president and vice president. We urge our colleagues in both parties to support these simple, commonsense reforms.”
Specifically, the bill would clarify that the vice president’s role in certifying electors in Congress during the Jan. 6 joint session is purely ministerial, raise the threshold for members of Congress to challenge electors, remove vague and potentially exploitable language about a “failed election,” and take several steps to facilitate a single and conclusive slate of electors from each state. Rather than just one senator and one representative being able to launch an objection together, this proposal would raise the bar to one-fifth of both the U.S. House of Representatives and U.S. Senate. And unless otherwise established by a state at the time of the election, it would identify each governor as the state official responsible for submitting their state’s slate of electors to Congress.
In attempting to prevent a repeat of a terrible and nearly disastrous day for American democracy, this Electoral Count Act reform effort shows elements of America at its best: People of different backgrounds and perspectives coming together to identify a problem, share ideas about how to fix it, and ultimately forge a path forward together.
And once again, this collaborative approach provides a legislative roadmap for getting things done in a closely divided Senate. It shows what is possible in America where we work together, with different ideas but a shared sense of respect and commitment to the democratic process, in order to improve our laws rather than exploit them for personal gain.