Last month, something potentially historic happened: A bipartisan group of senators announced a new bill that would help prevent the overthrow of a presidential election. The bill, led by Sens. Susan Collins (R-ME) and Joe Manchin (D-WV), would reform the Electoral Count Act of 1887 (ECA), the outdated statute that dictates the process for casting and counting presidential electoral votes.
The new Electoral Count Reform and Presidential Transition Improvement Act is not the first or only such effort. In February, Sens. Angus King (I-ME), Amy Klobuchar (D-MN), and Richard Durbin (D-IL) released their own proposal to reform the ECA. Reps. Zoe Lofgren (D-CA), who is the chair of the House Committee on Administration, and Liz Cheney (R-WY), the co-chair of the Select Committee to Investigate the January 6th Attack, have announced that they will release bipartisan legislation on this topic in the near future.
But there is little doubt that the bill introduced last month, sometimes called the Collins-Manchin bill, is going to be the center of the conversation, for one simple reason: The Senate filibuster is currently the most difficult legislative obstacle for most bills in Congress, and this bill is already within reach of filibuster-proof support. It is likely to have broad support among the 50 Senate Democrats and already has 9 Republican co-sponsors. Unless Democratic support falters, only one additional Republican vote is needed to cross the 60-vote threshold for passing legislation in the Senate.
In other words, the bill has a very good chance of being passed.
The question then, for leaders in both the Senate and the House of Representatives, is whether to pass the bill largely as written or to hold out for something better. To be sure, the bill likely needs some technical changes—and its original negotiators may even be open to some substantive amendments. But the bill is a solid proposal that solves a serious problem. Members of Congress should err on the side of accepting this proposal, and resist the temptation to make the perfect the enemy of the good.
The Collins-Manchin bill would help protect American democracy
Passing the Collins-Manchin bill would go a long way toward preventing one of the worst disasters that could befall American democracy: a presidential election in which the losing candidate subverts the will of voters in order to take office.
The United States narrowly avoided such a disaster in the 2020 presidential election, as the work of the January 6 committee has vividly illustrated. In late 2020 and early 2021, John Eastman, a legal adviser to then-President Donald Trump, drafted two memos in which he argued that there were multiple ways to overturn the results of the election:
- Partisan officials could submit fake electors in pivotal states.
- The vice president could refuse to count any votes from states where fake electors had been submitted.
- Trump allies could encourage state legislatures to revisit and alter election results.
- Members of the House of Representatives could vote, unilaterally, to overturn the results of the election—by a simple majority vote of states, not a majority of members.
Though most of these ideas are, at best, legally dubious, they provided much of the impetus for the January 6 attack, which was aimed at disrupting the counting of electoral votes and overturning the election.
The Collins-Manchin bill addresses each of these possibilities and, moreover, would foreclose other foreseeable ways that future presidential elections could be undermined:
- The bill requires state governors, or another state official designated prior to Election Day, to submit the official electors for each state.
- In the event of an issue with state elections—including a rogue governor submitting a slate of electors that is contrary to the election results—the bill contains an expedited judicial process to determine electors’ validity.
- The bill unambiguously prohibits the vice president from interfering with the electoral votes.
- The bill closes a potential loophole in the current ECA that allows legislatures to declare a “failed” election and perhaps revisit the results.
- The bill raises the threshold for objections to the electoral votes in Congress, and it states that any objection may only be sustained by a vote of both the House and the Senate.
In short, the Collins-Manchin bill would make it vastly more difficult for state legislatures, governors, and Congress to manipulate, sabotage, or otherwise interfere with the results of a presidential election.
The path forward for ECA reform
Of course, that is not to say that the bill addresses all the threats to American democracy. It does not expand fundamental protections for the right to vote or reinforce other civil or political rights. And it does not address the myriad threats to local, state, and congressional elections. But those are not good reasons to withhold support for a bill that could protect American democracy from a very real threat looming in the next presidential election.
As the legislative process unfolds, the Collins-Manchin proposal is likely to see technical changes. For example, perhaps accidentally, the bill allows for a situation where there would be only six days between a governor’s certification of a slate of electors and the meeting of the Electoral College—not enough time to realistically resolve all necessary post-election litigation. That’s a problem that should be addressed, and for which there is a relatively straightforward solution. As Yale Law School Fellow Matthew Seligman has suggested, the date for the meeting of the electors could simply be moved back from mid-December, to provide additional time for litigation to be resolved.
There are other areas where the bill could be expanded and improved. For example, the bill retains some of the ambiguous language currently in the ECA, including references to “papers purporting to be certificates” and “votes regularly given.” It would be better if these terms were removed or rephrased.
But the first priority for members of Congress should be to pass this bill ahead of the November elections. The Collins-Manchin bill was the result of six months of broad, bipartisan negotiations. Members of Congress should be wary of upsetting the compromises necessary to get here—and poised to deliver this win for American democracy.
Alex Tausanovitch is the director of campaign finance and electoral reform at the Center for American Progress.