‘Shoring Up the Guardrails’

It now looks likely that the U.S. Congress will see a meaningful breakthrough after the Republican Senate Minority Leader Mitch McConnell announced last week that he supports a bill to reform America’s Electoral Count Act—the 1887 law governing the counting of electoral votes in the country’s presidential elections. The reform legislation, co-sponsored in the Senate by 11 Democrats and 11 Republicans, is an effort to update the law and clarify its dictates—with the aim of preventing a repeat of the political chaos that accompanied the Capitol Hill riots of January 6, 2021, as the former president Donald Trump and his allies variously pressured Vice-President Mike Pence and Congressional lawmakers somehow to overturn Joe Biden’s election victory. Pence and the majority of lawmakers ultimately abided by their duty to certify the election, but 147 Republicans voted to overturn it. So what do the proposed reforms to the Electoral Count Act mean for U.S. elections?

Andy Craig is a staff writer at the Cato Institute in Washington, where he covers election laws, electoral reform, polarization, and political incentives in the U.S. In Craig’s view, America’s system of casting and counting votes isn’t fundamentally broken—it survived January 6 and remains strong to this day—but the reforms to the Electoral Count Act now on the table would nevertheless be significant for American political life. By raising the threshold for objecting to vote certification, emphasizing that the vice-president only has a ceremonial job in the process, and adopting other changes related to the role of state governments, these reforms would eliminate the legal ambiguity and reduce the kind of confusion Trump was able to exploit to mobilize supporters, some ultimately to deadly violence.

Graham Vyse: What’s driving this reform effort in the U.S.?

Andy Craig: A lot of scholars and analysts believed the Electoral Count Act should be reformed even before January 6, but that day brought the issue to the center of American life. It galvanized a widespread desire for congressional action and ultimately brought together a broad, bipartisan coalition in favor of reform. As the law exists now, it’s vague, confusing, and poorly drafted in many ways. Over time, these problems enabled a series of wrong but not always totally implausible arguments that state officials, or Congress, or even the vice-president acting on his own could somehow change the result of the 2020 presidential election—which drove a mob to sack the Capitol.