Opinion | The three fixes Congress should make to save democracy – The Washington Post
The threat of election subversion — in particular, the threat that Donald Trump will try to illegally seize power on Jan. 6, 2025 — is real and dire. There are three things that Congress can do to protect against the danger that Trump will succeed next time where he failed previously in having Congress declare him the winner of an election he didn’t win.
These measures are my main takeaways from a conference last week organized by University of California at Irvine professor Richard L. Hasen on election subversion. They are: modernizing the law that governs the certification of the election; focusing the election reform debate on measures that protect honest vote-counting; and changing election-counting rules so that candidates must win a majority of votes in November.
The conference’s clear theme was that Trump is endeavoring an illegitimate comeback by putting into office, both in Congress and state government, lieutenants loyal to him, not to the Constitution — in other words, willing to perpetrate “big lie” 2.0, that Trump could only lose if the election is stolen from him, again. There was more consensus on the diagnosis, however, than on the necessary cures. In my assessment, these include:
Modernizing the antiquated and ambiguous Electoral Count Act of 1887. This is the law that invited the Jan. 6 insurrection by making it too easy for members of Congress to object to counting states’ electoral votes. Congress must replace this convoluted statute by making it clear, in 21st-century language, that Congress will not second-guess states’ appointments of electors.
Instead, the new version should commit Congress to accept a state’s own resolution of a dispute over appointment of electors. If a federal court declares that the state has acted unconstitutionally, Congress should respect the federal court’s conclusion. But the Constitution gives Congress no power, when meeting to count electoral votes, to re-litigate whether state officials obeyed state law in appointing electors. This is the best reading of current law, but the revised Electoral Count Act should make that indisputably clear.
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Is it possible to achieve this rewrite in our partisan era? As several conference participants noted, a cross-party coalition of the remaining Republicans loyal to the Constitution rather than to Trump should be able to muster a filibuster-proof margin in the Senate to clarify the law.
Focus on enacting those parts of the Freedom to Vote bill that directly safeguard the honest counting of votes and certification of results. The new Senate bill takes steps to secure the integrity of votes recorded on ballots — and the officials who count them — and provides for genuine audits. Yes, there is the need to guarantee the right to cast a ballot, and some at the conference made the case that it’s pointless to protect vote-counting without a genuine right to vote.
But as New York University law professor Richard Pildes observed, there are different ways to cast a vote. In-person early voting reduces the risk of election subversion much more than absentee voting, because it’s easier to exploit the vulnerabilities of absentee voting.
And that provides the potential outlines of a deal between Constitution-loyal Republicans and Democrats: Have Congress require that all voters have an adequate opportunity to cast an in-person ballot, leave states to decide how much absentee voting to provide in addition — and in the process create the legislative space to enact essential vote-counting safeguards.
This is an imminent emergency. Perhaps the ballot-casting rules won’t be as generous as Democrats want. Still, that can’t justify failing to do something to protect vote-counting.
Changing election rules to require that members of Congress win a majority in the general election, not just a mere plurality. Who sits in Congress on Jan. 6, 2025, will make a difference on whether the republic is in danger.
At least one conference participant voiced the view that Democrats must keep control of Congress for the republic to be safe. But others, including prominent democracy scholars Steven Levitsky of Harvard and Larry Diamond of Stanford, expressed the opposite view: that only with sufficient numbers of Constitution-loyal Republicans in Congress can a pro-democracy coalition protect against the risk of a successful coup. Democrats cannot guarantee themselves the majority in both congressional chambers on Jan. 6, 2025.
Diamond thus urged the adoption of ranked-choice voting as the way to enable Constitution-loyal Republicans to show that a majority of general-election voters prefer them to Trump-loyal Republicans. Although Congress won’t — and, for federalism reasons, shouldn’t — require all states to use ranked-choice voting, it could require its members to win a majority of general-election votes, letting states choose how to implement a majority-winner rule.
That move would allow Constitution loyalists, such as Rep. Liz Cheney (R-Wyo.), to prevail without needing to win a Trump-dominated primary. Although the existing electoral system is so entrenched that it’s hard to imagine Congress disrupting it, the danger to democracy is acute enough to justify pressing for this Constitution-protecting measure.
In fact, of the three steps Congress can take, this one may be the most important. Laws can be changed. In the end, it is the members of Congress on Jan. 6, 2025, who may be called on to choose whether to obey Trump or the law.
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