The Electoral Count Act and the next steps on voting rights

This week, President Biden weighed in on whether the midterm elections this year could be conducted fairly if, as expected, Democrats failed to pass sweeping voting rights legislation. 

"It all depends on whether or not we're able to make the case to the American people that some of this is being set up to try to alter the outcome of the election," Mr. Biden replied, in a news conference Wednesday. 

Asked both to clarify his remarks and to opine on whether the midterms "would in any way be illegitimate," the president responded, "I think it easily could be — be illegitimate." 

The voting rights measure being considered in the Senate that day and its impending failure seemed to be on his mind. "The increase and the prospect of being illegitimate is in direct proportion to us not being able to get these — these reforms passed," Mr. Biden said. 

Raising the specter of an "illegitimate" election drew comparisons with Mr. Biden's predecessor, prompting White House press secretary Jen Psaki to further clarify that the president believes the midterms will be legitimate, despite the failure of the voting rights legislation. Still, Psaki said Mr. Biden worries about attempts to overturn results after the fact.

"As recently as 2020, as we know, the former president was trying to work with local officials to overturn the vote count, and then not have ballots counted," Psaki said.  "And we have to be very eyes wide open about that and clear-eyed, that that is the intention, potentially of him and certainly of members of his party."

Now, in order to head off at least one avenue that threatens the legitimacy of presidential elections, a bipartisan group of senators has been working on one potential reform centered around the way presidential election results are certified. 

Republican Senator Susan Collins of Maine told reporters on Thursday that six Democratic senators are working with a group of Republicans to reform the Electoral Count Act. A group of senators plans to gather for a Zoom meeting Monday to discuss reforming the law, according to two sources familiar with the plans. 

The Electoral Count Act is the 1887 law that governs the way Congress counts and certifies votes from the Electoral College after each presidential election. Advocates for reforming the law say it's outdated and does not provide clear guidance about the role that Congress plays in certifying election results. That ambiguity, they say, created the circumstances that led to the events on January 6, when thousands of then-President Trump's supporters stormed the Capitol to try to stop Congress from affirming what the states had already determined — that Joe Biden had won the 2020 presidential election. 

"The model for us coming up with an election reform bill that is truly bipartisan that would address many of the problems that arose on January 6 and that would help restore confidence in our elections is the approach that we used for the bipartisan infrastructure bill," Collins said.

Democratic West Virginia Senator Joe Manchin is among those working on the reforms. He said he has spoken with Mr. Biden, who believes it's important to reform the law so that "no one ever thinks" they can repeat the events of January 6.  

The other issues that the group is focusing on include reforms to the Election Assistance Commission, funding for the Help America Vote Act, protecting election officials from harassment and unwarranted removal and providing protections for poll workers. 

A group of election law scholars suggested in a Washington Post op-ed that the law be reformed to make clear that whenever Congress receives one submission of electoral votes from a state, Congress must accept those results. If there are competing electors, which has not happened since 1876, they want Congress to incentivize states to settle which group speaks for the voters. If that can't happen, they suggest letting a governor, state supreme court or a nonpartisan institution make the final call – not Congress 

"Congress committed in the original Electoral Count Act not to second-guess a state's vote when that state sends only a single slate of electors," the group wrote. "In recent decades, that commitment has become dangerously frayed. Congress needs to update and clarify the act to produce a statute that does not invite abuse by its own members."

Election experts have been warning that it's important to set up clear rules on the counting and certification of elections because of efforts by Trump and his allies after the 2020 election to overturn the results. Republicans who embraced baseless theories of fraud are running for positions that oversee elections in key battleground states. In Michigan, some Republican election officials who certified results have since been replaced. 

"There is a risk from election deniers taking over some of those positions, whether it's at the secretary-of-state level or the poll-worker level," said David Becker, the executive director of the Center for Election Innovation and Research. "We have to make sure that we protect the integrity of elections as much as possible and erect guardrails to prevent excesses that could hypothetically occur but have not yet."

The White House has said it's those potential threats that Mr. Biden was warning about when it comes to concerns about the legitimacy of future elections. But mixing in the references to the voting rights legislation that failed in Congress, which would have set national standards for election administration amid GOP state legislatures enacting voting laws that add restrictions, muddled that message. 

Becker said elected officials need to be careful about how they talk about future elections, even if politicians don't like the rules in certain states, to ensure that the "will of the voters holds sway."

"(We should) acknowledge that we will hold all elections to be legitimate outside of extraordinary circumstances where some court or the rule of law raises questions about the integrity of the election," Becker said. "The threat is real, but until that happens, elections are legitimate and the winners take office. Period."