Reform the ECA, End the “The Big Lie”

November 7, 2022 Updated January 19, 2024 Policy Analysis

As Americans head in to vote in tomorrow’s crucial 2022 midterm elections, the stakes for the future of our country have never been higher. Our country has faced such daunting moments before and came out stronger; however, Democracy is not self-executing and course corrections need to be made when necessary, as has now become the case.

To put things in perspective: In 1876, the United States faced an electoral crisis. In the days following the general election, irregularities emerged as Congress received conflicting electoral vote counts from four states: Oregon, South Carolina, Florida, and Louisiana. With 20 votes hanging in the balance, Rutherford Hayes and Samuel Tilden remained as viable candidates battling for the presidency. But who would certify the votes, and how?

Image source: ​​JEFF MILLER, Grand Haven Tribune

After months of partisan debate, legislators compromised by creating an emergency 15-person Electoral Commission comprised of senators, representatives, and SCOTUS justices to resolve the dispute. After an 8–7 vote, the commission awarded the votes to Hayes, resulting in a one-point victory (185–184) for the Republican candidate — only two days removed from his inauguration.

In totality, the 1876 Election emphasized the importance of creating a secure legal procedure to certify results and commence a stable transition of power. Against the initial wishes of both parties, neither Congress (majority-Democrat) nor the Acting Vice President — Republican Thomas Ferry — held any authority in the proceeding. Not until 1887, eleven years later, did Congress devise the Electoral Count Act (“ECA”), which clarified state procedures for certifying votes and declared a formal congressional count to occur on January 6.

For nearly 135 years, this legal framework has remained in place without significant challenge — that is, until now.

In the 2020 presidential election, eight Republican senators and 139 Republican House members cited several vague clauses in the ECA to try and invalidate electoral votes in Arizona, Pennsylvania, and several swing states. As per the ECA, a majority in the House and Senate can reject an electoral vote if that elector’s appointment had not been “legally certified” or “regularly given.” These actions were all taken despite extensive judicial verdicts that dismissed claims of irregularities in voting machines and absentee ballots. And the consequences of their acts and other such lies of purported fraud in the Presidential election, without an iota of any actual evidence, claiming that President Biden did not legitimately win the 2020 election have been devastating (the collective efforts of these election deniers are now known in the media as the “Big Lie”).

Using the Big Lie as a pretense, 28 states introduced 126 bills affecting absentee voting, instituting ID requirements, and changes to rules at polling stations that will collectively have the impact of suppressing the vote of minority communities. In Texas, for example, the number of polling stations have fallen in inner-city locations — causing working-class people to travel longer distances and wait longer lines. And in Georgia, volunteers are not able to provide water for those waiting in lines to cast a ballot. The timing of these vote suppression machinations across the many states could not be worse. More Americans are losing faith in democracy and exhibiting greater distrust in the federal government — especially in the days following the January 6, 2021 insurrection. Even more alarming is political extremists co-opting Big Lie narratives in their bids for public office. Over 35 Trump-endorsed candidates, some of whom are election deniers and QAnon supporters, have won their respective primaries going into tomorrow’s midterms. And as of August, at least six victors in primaries for state secretary of state have denied the election results in 2020. At this critical juncture in U.S. history, legislators need to take action to instill confidence in and prevent erosion of America’s democratic institutions.

In response, Senators Joe Manchin (D-WV) and Susan Collins (R-ME) introduced the Electoral Count Reform and Presidential Transition Improvement Act (“ECRA”) and the Enhanced Election Security and Protection Act (“EESPA”) in early August. The bills first introduced in a Senate Committee Rules hearing specify further guidelines to secure electoral vote counts and increase criminal penalties for threatening candidates and poll workers. More specifically, the ECRA will appoint the governor to certify electoral votes, raise the threshold for congressional objections (to only allow legitimate objections on material issues versus the frivolous and unsubstantiated objections based on the ECA lodged in the 2020 Congressional vote noted above), and clarify the vice president’s ministerial role in the process.

Passing these two bills is an essential step towards safeguarding democracy and the voices of millions, including African Americans, Latinos, American Muslims and citizens of other immigrant and minority/working class communities who continue to struggle to get equal access to the polling booth. At their core, these bills represent a bipartisan acknowledgement of the current threats our democracy faces. Currently, eight other Republican Senators are involved in the negotiation process: Mitt Romney (UT), Rob Portman (OH), Lisa Murkowski (AK), Lindsey Graham (SC), Todd Young (IN), Ben Sasse (NE), Thom Tillis (NC), and Shelley Capito (WV). At this time, Senator Chuck Grassley (R-IA) has also expressed nominal support, which can help the bills overcome the filibuster and ultimately pass in both congressional chambers.

Most importantly, passing these bills will reaffirm the federalist system that has underlied American government for more than two centuries. According to University of Iowa Law Professor Derek Muller, the ECA reforms will prevent states from self-defining electoral emergencies and creating other arbitrary delays and instead encourage state legislators to certify electors in a timely and accurate manner. Even with the reforms, states would still fully retain their authority to enforce laws regarding recounts and administrative audits, and state courts will continue to retain jurisdiction over various local claims filed before and after Election Day. Altogether, the bills reinforce a steady balance of power between local, state and national authorities by establishing a clear, consistent process in handling one of America’s most cherished democratic traditions — a peaceful transition of Presidential power.

MPAC will continue to build upon current efforts on Capitol Hill ensuring protecting our American democracy and preventing the erosion of the public trust remains an integral part of the focus of our government. Toward this end, earlier this year, MPAC hosted a series of non-partisan forums in Washington D.C., Chicago, Atlanta, Houston and Sacramento. These engaging discussions with influential policy makers, elected officials (at all levels — national, state and local), academics, various civic/community leaders and community allies were meant to elicit policy and other solutions that we can collectively work on to prevent the erosion of our shared democratic institutions, values and norms.

Speakers and panelists featured in Washington D.C., and Chicago have included: U.S. Congressman Ro Khanna; U.S. Congresswoman Marie Newman; U.S. Congresswoman. Jan Schakowski; Professor David Myers, History Department Chair of Jewish History at UCLA; Kaleemah Muttaqi, community organizer at Sacramento ACT; David Bocarlsy, Executive Director Jewish Public Affairs Committee of California; Sadia Sindhu, Founding Executive Director at the Center for Effective Government housed at the University of Chicago’s Harris School of Public Policy; and Zeenat Rahman, Executive Director of the University of Chicago Institute of Politics. Collectively, the panelists addressed the rise of political extremism and the significance of pluralism in modern American discourse and civil society.

The Houston Democracy Forum directly took on the Big Lie and its rhetorical impact on the midterm elections and our political institutions with our featured speakers including: State Rep. Ron Reynolds (TX — District 27), Harris County Attorney Christian Menefee, and Former Harris County Clerk Chris Hollins. With extensive records on protecting voting rights and civic engagement, these special guests will engage in thoughtful discourse that encourages American Muslims to reflect on and lend additional support to protect the will of the people.

In summary, at MPAC, we believe active political engagement among all stakeholders across all party lines and in partnership with the public-private sectors serves as America’s most effective tool to protect our democracy.

We invite you to come join us at our future events and support our work by visiting our website.

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