The Senate bill to prevent the next Capitol riot is finally here

AP Photo/John Minchillo

It’s a national embarrassment that this bill needs to exist at all.

Or does it? Trump is still so obsessed with 2020 that he might neglect preparations to overturn the result in 2024:


Susan Collins and Joe Manchin hinted last week that their bipartisan Senate “gang” was almost done with a bill to amend the Electoral Count Act of 1887, which lays out the procedures Congress must follow in certifying the results of the electoral college. At a minimum, the new bill would specify that the vice president’s role is purely ministerial, leaving him no discretion to reject any votes certified by the House and Senate. But ideally it would do much more than that, clarifying what happens when a state sends two slates of electors to Congress and limiting the power of state officials to engage in chicanery aimed at nullifying the popular vote in their state.

The gang has spent six months trying to get together on a compromise, with Dems wanting to fold in extraneous voting-rights provisions that would affect how votes are cast and Republicans wanting to stick to the more urgent business of safeguarding how votes are counted. That compromise has been reached, they announced today. They’re offering two bills, one aimed at revamping the ECA and the other addressing ancillary issues related to voting (e.g., raising the penalties for intimidating an election worker). Here’s the one-page summary of the ECA bill. To give you a sense of how far we’ve slipped down the slope towards a potential coup, the gang felt obliged to include this in the legislation:


Even in 2020, no one contemplated a scenario in which a Trumpist state government might declare a “failed election” based on some dubious state emergency as a pretext for overturning a popular vote won by Biden. The gang is putting nothing past MAGA governors and secretaries of state in 2024.

Even so, I’m not thrilled with all of their reforms based on the scant description in the fact sheet. For instance, under the current ECA, a single House member and a single senator who object to certifying a state’s electoral votes can force a floor debate in both chambers on the matter. The new bill raises the threshold by requiring objections from one-fifth of each chamber instead, which is an improvement. But Republicans nearly cleared that threshold in 2020; far more than a fifth of the House ended up objecting on January 6 and at one point a dozen or so Republican senators were prepared to do so. Requiring a third of each chamber to object would be better.

More from the fact sheet:

I’m imagining Doug Mastriano as governor of Pennsylvania in 2024 and wondering what sort of havoc might be wreaked by the fact that this law authorizes him alone to submit the certification of Pennsylvania’s electors to Congress.

On the other hand, *someone* at the state level needs to be authorized to do so. The governor is the logical choice. Empowering the secretary of state instead wouldn’t improve matters since that position is appointed by the governor in PA. And a governor might be better positioned politically to resist Trumpist efforts to overturn the state’s popular vote than the state legislature would. Look no further than Brian Kemp, who earned an undying grudge from Trump for certifying Georgia’s election in 2020 and then trounced his Trump-backed challenger in this year’s gubernatorial primary. Governors are powerful officials with their own bases of electoral and financial support; state legislators are largely nobodies and should be more susceptible to corrupt pressure from the base.


By deputizing one official as authoritative, the law aims to prevent competing slates of electors from being sent to Congress, one by the governor and the other by the state legislature. And by deputizing federal courts to hear objections from an “aggrieved” candidate, the law presumably prevents the nightmare scenario in which a governor and a state legislature conspire to overturn their state’s election — or a governor corruptly certifies the slate of electors on behalf of the losing candidate from his own party. Under the new law, SCOTUS should be the backstop against a “Mastriano gone rogue” scenario.

Greg Sargent wrote yesterday about other provisions being considered for inclusion in the bill but it’s unclear from the fact sheet whether they made it in:

— Presidential electors must be appointed by the manner the state’s laws dictated before Election Day. This would prevent a state legislature and governor from appointing sham electors after the voting.

— If a state appoints a slate of electors before a deadline — the sixth day before the presidential electors meet — it overrides any electors appointed after that deadline. This would also avert post-vote shenanigans.

— The governor of each state must certify the electors before that deadline. If a governor violates this duty, the aggrieved candidate can appeal to a three-judge panel of two circuit court judges and one district court judge.

— The slate of electors deemed the legitimate one by the federal courts is conclusive.


It’s widely assumed that a state can’t hold an election and then decide afterward to give its electoral votes to the loser, but since state legislatures have constitutional authority over how their electors are awarded, it’d be nice to have the “no take-backsies” rule on paper. Also, I assume that any court ruling on whether a state’s certified electors are legitimate would be final for Congress’s purposes, such that the House and Senate would have no discretion to reject those electors, which is all to the good. The more this process can be outsourced to federal officials who are insulated from electoral pressures, the less corruption there’s likely to be.

Hopefully the bill will get a bit more aggressive during the committee process in heading off the “Mastriano gone rogue” problem. In the meantime, though, according to Mitt Romney’s office there are already nine Republican sponsors of the legislation in the Senate. It’s a cinch to pass, in other words, especially with Mitch McConnell rooting for ECA reform. I’ll leave you with this.

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