Richard L. Hasen writes:

Last week’s announcement by a bipartisan group of senators proposing reforms to the poorly written 1887 law that governs Congress’ counting of the Electoral College votes is a good half-loaf measure against election subversion. This is an opportunity that Democrats should jump at, despite their nervousness, if they have the chance to pass the bill with some Republican support this summer or fall. Any meaningful step that lessens the chances of a stolen presidential election in 2024 or beyond is worth pursuing, and the bill would be a significant step forward. But more will still need to be done.

The presidential election in the United States is uniquely vulnerable to risk compared to other elections because there are so many more steps that have to happen between the time voters vote and when the winning candidate finally assumes office, and at each step people can potentially act in bad faith and seek to mess with the process. Generally for presidential elections, voters cast ballots in their local areas and votes are tallied locally by election officials; state officials then canvass the votes and in some states a canvassing body pronounces the local and state winners; the governor (or another state official) has to send in the official results to Congress; Congress has procedures contained in an arcane 1887 law, the Electoral Count Act, for how to count those votes in the case of a dispute, and depending on how that vote goes there are different steps for choosing the president. Historically, though, it’s been pretty straightforward.

Former President Donald J. Trump’s attempts to prevent certification by Congress of the 2020 election results, however, showed the many pressure points for attempting to mess with free and fair elections in the United States. There were protests, intimidation, and false claims of fraud while local election officials were tallying the votes; Trumpists brought pressure on Republican members of local and state canvassing boards whose job it was to state the official vote totals; Trump tried to convince state legislators to send in alternative slates of fake electors to Congress, based upon a weak reading of a provision of the Electoral Count Act that allows legislatures to act in the case of “failed” elections; Trump tried to pressure Georgia’s secretary of state to mess with the vote totals, activity that is currently subject to investigation by the Fulton County district attorney; Trump tried to pressure then-Vice President Mike Pence, who had ceremonial role under the Electoral Count Act in presiding over Congress’ counting of the Electoral College votes, to accept the fake slates of electors or throw out legitimate electoral votes from some states that Biden won; Trump worked with Republican senators and members of Congress to raise bogus objections to the counting of Electoral College votes; and Trump encouraged the violence of January 6 to disrupt the counting, by a mob intent on possibly capturing or killing the vice president and congressional leadership. There was even more than that: as we learned from the January 6 hearings, Trump considered ordering the federal government seize voting machines, perhaps to order an illegal election do-over supervised by Trump cronies. Real banana republic stuff. [Continue reading…]