Former president Donald Trump’s failed end run around the Electoral College fueled an insurrection on January 6, 2021 — and prompted Congressional reforms on how presidential elections are certified. Hoping to establish a more secure electoral process, U.S. senators Joe Manchin (D-WV) and Susan Collins (R-ME), with bipartisan support, brokered reforms of the outdated Electoral Count Act of 1887, as part of the 2023 Omnibus (“for all,” in Latin) Appropriations Bill that Congress passed in late 2022. “After nearly a year of bipartisan negotiations, we are delighted that the Senate’s ECA reform is now law,” Manchin and Collins said upon passage of the Electoral Count Reform and Presidential Transition Improvement Act of 2022. In contrast, Congressman Jamie Raskin (D-MD) told Face the Nation that though the reforms were necessary, they did not “solve the fundamental problem,” and that the Electoral College had become a danger to democracy and to the American people.
Others, such as Congressman Dan Goldman (D-NY), have described the effort as a “headline without a story,” implying that reform went only far enough to appease the GOP. Unhappiness with the reforms revolves around the legislation being insufficient to eliminate future attempts to subvert the Electoral College vote count. (Manchin’s, Collins’s, and principal player senator Lisa Murkowski’s [R-AK] offices all deferred commenting on this story).
And even with these reforms in place, Congress’s current composition might work against the new laws being effective at honoring slates of electors presented by each state. At least 150 House and 6 Senate election deniers have been reelected or newly elected to office. This is significant, considering that it is three more than the 147 Republican deniers who voted to overturn the 2020 election results, including Kevin McCarthy, who became speaker of the House earlier this year. Nationwide, more than 370 GOP candidates on the ballot in the 2022 midterms denied or questioned the 2020 election results. At least 177 election deniers won their races.
Think it can’t get any more precarious? In late February, McCarthy released 44,000 hours of video footage collected by the January 6 Committee to Fox News’s Tucker Carlson, who called the deadly violence occurring that day a “false flag” operation. Fox is now embroiled in a defamation suit brought by voting-machine giant Dominion, which has produced numerous text messages and emails shared among Fox’s on-air personalities and network executives that allegedly reveal how they systematically and knowingly spread misinformation nightly. Senate Majority Leader Chuck Schumer (D-NY) called the tape dump to Carlson “a grave mistake … needlessly exposing the Capitol complex to one of the worst security risks since 9/11.” Carlson fired back at his critics, saying, “The most important claims our leaders have made about that day were untrue. Their claims were lies,” while offering no concrete proof. Through Carlson’s mendacious edits, the tapes now have the status of election-denial porn.
In order to avoid a wash, rinse, and repeat of January 6, Congress now requires, starting with the 2024 presidential election, a single conclusive slate of electors to be submitted by each state’s governor, unless otherwise accounted for in a state’s constitution. But will such changes keep elections fair? Perhaps not, when one considers the tactics proposed by unsuccessful 2022 Republican Pennsylvania gubernatorial candidate Doug Mastriano, who said during his campaign: “As governor, I get to appoint the secretary of state. And I have a voting-reform-minded individual who’s been traveling the nation and knows voting reform extremely well.”
Reforms now in place will not allow Congress to accept a slate submitted by a different official. This addresses the problem encountered when, in 2020, groups from Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin met in December and agreed to send slates of so-called “alternate electors” to the National Archives, the nation’s repository for all documentation of day-to-day governmental proceedings. Consequently, last June, the FBI and the Department of Justice issued subpoenas to some of those involved.
The new electoral rules also provide for expedited judicial review, should legal challenges occur. Challenges will only be permitted to be made by aggrieved presidential candidates, who can request an accelerated process before a three-judge panel with direct appeal to the Supreme Court. This means that the kind of legal challenge on Trump’s behalf led by Republican congressman Mike Kelly, of northwestern Pennsylvania, which argued that the state’s mail-in voting law was unconstitutional, would not be allowed. Former president Trump and his lawyer Rudy Giuliani had repeatedly and baselessly claimed that Democrats had falsified mail-in ballots to steal the election from Trump; Biden beat Trump by more than 80,000 votes in Pennsylvania, a state Trump won in 2016 by roughly 44,000 votes.
And, moving forward, the reforms affirmatively state that as the presiding officer of the process, the vice president’s constitutional role is solely ministerial and does not include the power, as famously requested by then-president Trump, to determine or adjudicate disputes over electors.
Before these reforms, only a single member of each chamber was required in order to object to a slate of electors; the new threshold mandates that at least one-fifth of each of the House and Senate make the objection. Notably, the new rules strike a provision of an archaic 1845 law that could be used by state legislatures to override their state’s popular vote — by declaring a “failed election,” a term not defined in law. And as part of the reform package, the Presidential Transition Improvement Act provides clear transition guidelines for the process that was so miserably interrupted during the last election cycle, because of Trump’s unwillingness to concede the election or to help with the changeover to the Biden administration.
Will these reforms prevent a repeat of the violence on January 6, when, according to a Department of Justice estimate, approximately 10,000 people poured onto Capitol grounds, with at least 2,000 of them making it inside the Capitol Building? “I think the reforms are fully insufficient to ensure that what happened on January 6, 2021, will not happen again,” Goldman tells the Voice, adding, “It will certainly go a long way, but it is not enough.” Goldman points out that “the reforms as passed still give the governor of a state who is so inclined the ability to challenge electoral college results.” Hoping to further shore up voter protections, Goldman has introduced the Early Voting Act, which would require at least a 14-day window of in-person early voting for federal elections across the country, maximize polling place accessibility, and address unacceptable wait times for voters, which in Georgia lasted as long as 10 hours in 2020.
Reverend Al Sharpton, of the National Action Network, tells the Voice, “The first target of those who want to unravel our democracy is always the ballot box. That’s why you’re seeing states systemically peel away the right to vote and how people vote. Congress member Goldman’s legislation is a step forward in protecting our access to the polls and ensuring our vote is counted.”
But what about relentless norm busters who live to exploit cracks in the system?
Says Goldman, “There’s [now] less pressure on the vice president, and it’s harder for Congress to turn things around from the people’s wishes, but we still need to do more. That’s why I think legislation proposed by former representative Lynn Cheney (R-WY) and Congresswoman Zoe Lofgren (D-CA) [would’ve been] the better alternative.” The Cheney-Lofgren bill would have set the threshold for objecting to a state’s electoral votes at one-third of each chamber, not one-fifth, as established in the recent Congressional reforms. But that measure is considered dead with the passage of the Manchin-Murkowski-Collins reforms. Another proposed change in that unrealized bill might be called “the Trump Rule,” as it created, according to Democracy Docket, “explicit grounds upon which members of Congress may object to a state’s electoral votes. One permissible reason for an objection is if the presidential candidate previously participated in an insurrection.”
“And there is a larger issue at hand here,” Goldman adds. “The electoral college is an antiquated system that needs further reform.” Indeed, over the past 200 years, more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College, according to the National Archives. That’s more proposals for Constitutional amendments than on any other subject. The American Bar Association has criticized the body as “archaic” and “ambiguous,” while surveys of political scientists have supported its continuation, arguing that the electoral college contributes to the nation’s political stability by encouraging a two-party system. Despite those academics’ assertions, public opinion polls have, over time, shown that Americans favor abolishing the Electoral College by majorities of 58% in 1967, 81% in 1968, and 75% in 1981. More recently, the Pew Charitable Trust reported that 63% of Americans believe that the winner of the presidential popular vote nationwide should win the election. In 2000, Al Gore scored 537,179 more votes than George W. Bush, while Hillary Clinton, in 2016, won 2,868,686 more votes than Trump.
Could the National Popular Vote Interstate Compact — a scheme to bypass the Electoral College by making it irrelevant — close up the loopholes? This plan is endorsed by 16 states and the District of Columbia, representing 195 electoral votes of the 270 needed to declare victory. Although there is disagreement among Constitutional law scholars, backers of the bill argue that the Compact would take effect when enacted by any combination of states that add at least the 75 additional votes necessary to reach the magic 270 number. If adopted, the agreement would guarantee the presidency to the candidate receiving the most popular votes across all 50 states and the District of Columbia, awarding member states’ presidential electors to the candidate who receives the most votes nationwide. This means that each individual’s vote for a presidential candidate in every state would count as cast in all future presidential elections.
What is the negative impact on an electoral system still at least partially ruled by the 1887 Electoral College Act? Legislatures in 48 states have in place “winner-take-all” laws that award all of a state’s electoral votes to the candidate receiving the most popular votes in the state. According to the Interstate Compact’s analysis, with winner-take-all statutes in place, presidential candidates “have no reason to pay attention to the issues of concern to voters in states where the statewide outcome is a foregone conclusion.” In 2012, all of the 253 general election campaign events were held in just 12 states, and two-thirds happened in just 4 states (Ohio, Florida, Virginia, and Iowa). Thirty-eight states were completely ignored. Similarly, in 2016, almost all campaign events (94%) were in the 12 states where Trump’s support was between 43% and 51%. Two-thirds of the events (273 of 399) were in just 6 states (Ohio, Florida, Virginia, North Carolina, Pennsylvania, and Michigan).
Keeping the Electoral College and state-level winner-takes-all laws in place “adversely affects governance,” according to Compact research. Sought-after “battleground” states receive 7% more federal grants than “spectator” states and twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.
Analysis also reveals that because of winner-take-all statutes, 5 of our 45 presidents have entered office without having won the majority of popular votes nationwide. (Note for stats buffs: there have been 45 people elected president, but because Grover Cleveland was elected to inconsecutive terms there have been 46 presidencies.) The 2000 (Bush over Gore) and 2016 (Trump over Clinton) campaigns are the most recent examples of elections in which the also-ran won the White House. This flaw highlights the fact that in a democracy, the people really do know best: The highest rank that any of the five unpopular-vote winners received in Siena College’s seventh sweeping survey of presidential historians and scholars examining the accomplishments of America’s 45 presidents is No. 17 for John Quincy Adams, way back in 1824. In ascending order, here are the other popular-vote losers who made it to the Oval Office: Trump pretty much scrapes the barrel at No. 43, a score calculated even before his indictment by a Manhattan grand jury for his alleged role in hush-money payments to porn star Stormy Daniels prior to the 2016 presidential election; next comes George W. Bush, still in the lower quartile at 35; Benjamin Harrison barely beats him, at 34; and Rutherford B. Hayes rounds out the bottom-dwellers, at No. 31.
So, can swing states’ adoption of the Interstate Compact plan achieve much-needed change? In the always hotly contested state of Michigan, Republicans recently elected Kristina Karamo to run the GOP through the 2024 elections — Karamo still denies her own 14-point election loss in the November secretary of state race. With such election deniers in power, Nathaniel Raskin, of FiveThirtyEight, doesn’t think adoption of the Compact is in the cards. He points out that Colorado is the only swing state that has endorsed the Compact, and that without Republican support, the initiative is not likely to hit the triggering 270 electoral votes. Even so, more than 63% of the nation supports a nationwide presidential voting system, according to that Pew Research poll last year.
In 2021, Alan Kennedy was elected as one of Colorado’s nine presidential electors. He is a public policy lecturer at William & Mary College, in Virginia, and was named that year by the American Bar Association as one of the country’s top 40 young lawyers. In 2019 Colorado joined the Compact, but a repeal effort landed the issue on the 2020 ballot. That November, Centennial State voters decided by a 52 to 48 margin to stay in the National Popular Vote Interstate Compact.
“In 2020, there was no pressure to vote for anyone other than President Biden and Vice President Harris,” Kennedy, referring to his role as one of the state’s electors, tells the Voice by phone. That’s unlike 2016, “when some ‘faithless electors’ from Colorado did not vote for former secretary of state Clinton, which is why the Electoral College should be abolished…. It’s a fundamentally undemocratic institution. So far, none of the states that voted for Trump have joined. If the 2020 presidential election had been decided by popular vote, the January 6 insurrection would not have happened.” Kennedy adds, “If Speaker McCarthy believes in transparency, and he is right that we need more government transparency, he would release the insurrection videos to the public instead of encouraging Tucker Carlson’s election denial fantasies.”
Political consultant Mustafa Rashed, CEO of Bellevue Strategies, a government relations and advocacy firm, tells the Voice in an email that the insurrection was in part due to our antiquated Electoral College. “January 6 was caused, supported, and perpetuated by a then-sitting president that refused to accept the practice set by other single-term presidents.” If the Manchin-Murkowski-Collins reforms had been in place on January 6, he says, “they would only have slowed the attack.” Rashed believes that all the ambiguities in these laws, historical practices, and lack of standard procedures “need to be addressed before the next election.”
“The reforms accomplished under the Omnibus Act were a very positive development,” Daniel Weiner, director of Elections and Government Programs at the Brennan Center for Justice, tells the Voice. “It was really important to make the law clearer so that it couldn’t be exploited by bad actors. It’s inevitable that people will find cracks in their opponents’ positions and laws and regulations that they think stand in their way.” At the same time, however, Weiner notes that there is a real risk bad actors will, in 2024, exploit inevitable ambiguities and gaps in the new law “the same as they exploited cracks in the previous version of the act in place for the 2020 election.” In particular, Weiner remains concerned that Congress has not passed uniform, enforceable standards for vote counting or sufficient protections for election officials, who can still face outright removal, intimidation, harassment, threats of violence, and even criminal prosecution — as in Texas, where officials threatened to prosecute election workers for encouraging people to apply to vote by mail.
And that’s not the only way a bad actor can gum up the works of democracy. For example, Arizona’s then-attorney general, Republican Mark Brnovich, launched an investigation into 2020 voting patterns in the state’s largest county, consuming more than 10,000 hours of staff time paid for by taxpayers. By March 2022, investigators reported that virtually all claims of error and malfeasance were unfounded, according to internal documents reviewed by The Washington Post — documents that Brnovich had kept private.
Weiner believes that clearer rules will add safeguards, because “We’ve never had a challenge like we had on January 6. For most of our history we’ve adhered to unwritten rules around the counting of electoral votes and presidential transitions of power.” In an era of “collapsing guardrails and shrinking norms, people aren’t as willing to sort out or learn our traditions.” Minus a baseline understanding of how our democracy works, Weiner contends, “People don’t always understand that so much of the stability of the American system of government depends on unwritten rules.” Or, to paraphrase Democratic strategist James Carville, “It’s the norms, stupid.” Morality and backbone cannot be legislated into existence. It is tough to write laws that will stop a devoted election denier if disruption is the goal.
Further thwarting an informed electorate is our nation’s blind eye toward teaching civics, which makes the peddling of misinformation, disinformation, and outright lies so much easier. There are no national standards for civics lessons, according to Education Week, an independent education-news organization. That can mean there’s slim chance that by the time a person is eligible to vote, they’ll have a practical understanding of how our system works, which will only increase voters’ frustration and perhaps make them more vulnerable to false claims or disingenuous calls to action. For example, a Kentucky man told the FBI that he and his cousin began marching toward the U.S. Capitol on January 6 because “President Trump said to do so.” Chanting “Stop the steal,” the two men tramped through the building and snapped a photo of themselves with their middle fingers raised. A video clip caught one man screaming at a police officer, “We were invited here! We were invited by the president of the United States!” A retired firefighter charged with throwing a fire extinguisher at police officers felt he was “instructed” to go to the Capitol by the president, according to court documents.
“Our system of government is nowhere close to perfect, but we have managed for most of our history to accomplish a sense of stability by people’s adherence to both established and unwritten codes of conduct,” Weiner explains. No matter what, “Outgoing presidential administrations collaborated with incoming presidential administrations to ensure a smooth transition of power, even if they had very fundamental disagreements.” No form of governing can consistently anticipate every single way in which bad actors might thwart the rules, which means that norms built up over time matter. “Those norms got blown up by Trump, and when that happens the written law isn’t always a substitute,” he concludes.
“Fixing the Electoral College Act is not remotely sufficient to safeguard the future of our democracy,” stresses Weiner. “The Brennan Center has been very clear that there’s a lot more we need to do, like fixing a deeply out of balance campaign finance system, strengthening voting rights protections, and the ongoing problem of extreme partisan gerrymandering.”
For Weiner, the Electoral College Act’s fuzzy language in play prior to reforms was a major factor in the January 6 riot and much of the lead-up activity to the insurrection, but “it was far from the biggest factor.” Besides the relentless spreading of disinformation online and across conservative media, he cites unclear voting rules that vary by state. For example, in Pennsylvania, voters did not have equal opportunities to cast or correct their ballots during the November 2022 election. A Spotlight PA and Votebeat analysis based on contacting election officials in all 67 Pennsylvania counties found an astounding patchwork of conflicting rules governing voting:
At least a dozen counties gave voters the opportunity to fix flawed mail ballots after they were turned in, a process known as “ballot curing.”
At least nine counties specifically forbade voters from coming into a county election office to fix a disqualifying error on a mail ballot, such as a missing date or signature on the outer envelope. Nearly one million registered voters live in those nine counties, and at least 1,599 mail ballots were rejected there for reasons including a missing date or signature, according to data from the Pennsylvania Department of State.
At least eight counties proactively reached out to voters to tell them about fatal defects with their mail ballots, while six published lists of voters who needed to cure their ballots.
Twenty-seven counties gave voters access to at least one round-the-clock drop box for mail ballots, while 40 — primarily in rural areas — required voters to either mail such a ballot or turn it in during daytime hours to an election office.
Sixty-two counties exceeded a state recommendation on how many voters may be assigned to a precinct. The cap aims to ensure that voters do not experience prohibitively long wait times to cast a ballot.
Nearly 40 county election offices do not make meeting minutes accessible online. Among those, four make the minutes available upon request or in person at the county election office.
In addition to this hodgepodge of voting procedures, Weiner returns to insufficient protections for election workers, which makes them vulnerable to vigilantism, something “we still need to deal with” since “fixing the Electoral College Act isn’t going to have much impact on these negative factors” He calls for a set of minimum national election standards “to ensure that people have access to the ballot box and that their votes are counted expeditiously in a fair and transparent manner.”
Another part of the solution, for Weiner, is reflected in the philosophy behind the Freedom to Vote Act, a legislative package that was almost passed by the previous Congress. The measure would not have taken the administration of elections away from states but would have provided reasonable national standards to make certain that everyone has access to voting. “We still need to ensure that votes are counted in an orderly manner, that no one will be disenfranchised. This is one of the most important reforms that needs to happen in response to January 6,” says Weiner. Expectations are that “setting up a minimum set of national standards is a way to drain some of the tension out of future fights. It should make it less likely that we’d repeat the traumatic events and aftermath of January 6.”
Although the final number of traumatic day-of incidents and real-time and subsequent deaths and injuries on and after January 6 remains a changing figure, a bipartisan Senate report, released in June 2021, stated that the attack on the Capitol had resulted in seven deaths. Since that report, two D.C. Metropolitan Police Officers who responded that day have died by suicide. In all, about 150 officers representing the Capitol Police and the D.C. Metropolitan Police Department were injured. The report also notes verbal and physical abuse of the officers protecting the Capitol: “Many were called ‘traitors’ and ‘nazis.’ An officer described being ‘called a pawn of China’ and seeing ‘someone give a nazi salute to the Capitol behind me.’ Officer Harry Dunn told ABC News, ‘I got called a [N-word] a couple dozen times today protecting th[e Capitol] building.’ He also described Black officers feeling targeted because of their race, saying ‘we fought against not just people that hated what we represented, but they hate our skin color also.’”
In 2022, voters returned or newly installed more than 150 election deniers to Congress. Weiner believes that the way voters reacted to election denialism in the midterm election was “a warning shot to elected officials but not a course correction.” While it is fueled by a determined minority — including those who attacked the Capitol — Weiner notes, “Denialism is not a winning strategy over the long term,” a contention born out, on the national level, by the losses of such Trump-endorsed Senate candidates as Mehmet Oz, in Pennsylvania, and Herschel Walker, in Georgia. Weiner also stresses that partisan gerrymandering by state legislators who want to hold onto power also makes it harder for Americans to vote. In the mix of possible ways to reverse the circus-like atmosphere stifling U.S. politics — especially as we move toward the 2024 presidential election — Weiner would add to any legislative and regulatory fixes the notion that culture matters. “Regardless of the reforms enacted, people need to reaffirm their commitment to the basic foundational principles of our democracy.” ❖
Frank Pizzoli is a journalist who has been covering politics, queer issues, healthcare, and literary celebrities for the past 25 years.