Congressional Efforts To Shore Up Elections Revive Interest in a National Popular Vote Compact
One bill would clarify that the vice president does not have the power to influence the electoral results, which was a point of contention central to the January 6 attack on the Capitol.
The Senate Rules Committee begins hearings Wednesday on proposed changes to the Electoral Count Act that would prevent efforts like those of President Trump to overturn the 2020 election, which also has revived interest in the idea of determining American presidents through a national popular vote.
The committee will be debating the merits of the Electoral Count Reform Act, which is intended to shore up some of the structural issues in presidential elections. The idea of changing the act was first marked in editorials of the Wall Street Journal.
Changes proposed in the Electoral Count Reform Act include alterations to prevent lawmakers from challenging a state’s electoral votes, and mandating that states choose electors on Election Day and “in accordance with the laws of the state enacted prior to Election Day.”
It would also clarify that the vice president does not have the power to influence the electoral results, which was a point of contention central to the January 6 attack on the Capitol. Mr. Trump and his lawyers insisted that Vice President Pence had that right, even though most legal scholars rejected the notion.
A complementary bill, the Enhanced Penalties to Protect Our Elections Act, would increase the punishments for “crimes against federally protected activities relating to voting,” alter some of the rules around the postal service’s handling of ballots, and reauthorize the election assistance commission.
Both bills are believed to have a good chance of passing, at least in some form.
The Senate minority leader, Mitch McConnell, has expressed sympathy for the effort, telling reporters that “the Electoral Count Act does need to be fixed.” Nine Senate Republicans are backing the legislation.
The bills have drawn equal parts support and criticism from political observers and critics on both the right and the left.
A research fellow at the libertarian-leaning Cato Institute, Thomas Berry, calls the legislation a “solid effort” that would “represent a vast improvement over the current law.”
Authors Daniel Weiner, Martha Kinsella, and Katherine Scotnicki at the liberal Brennan Center argue that the bills do not go far enough in addressing “the full range of problems with the law.”
“Not only does the law apply only to presidential contests, it simply has no bearing on many of the most significant ongoing threats arising from the falsehoods that fueled the assault on the Capitol,” they write.
The renewed focus on the byzantine mechanics of the presidential election has also drawn attention to the push for a different sort of electoral reform, the National Popular Vote Interstate Compact.
The compact is an agreement between states to cast their electoral college votes for “the candidate who receives the most popular votes in all 50 states and the District of Columbia,” according to the National Popular Vote organization.
The chairman of the organization, John Koza, tells the Sun that the adoption of a national popular vote would serve to simplify our presidential elections and put to rest “all this minutiae that the lawyers whip up.”
“The reason we have so many disputes and lawsuits is that the current system divides the country into 51 different voting buckets and some of them will be very close,” he says.
He explains that President Biden “was elected with 10,000 votes in Arizona, 11,000 votes in Georgia, and 20,000 votes in Wisconsin — that’s a close enough number that lawyers can imagine all sorts of things.”
The popular vote compact requires states accounting for a majority of votes in the Electoral College to pass state laws that would take effect when said majority is reached, dedicating their electors to the winner of the national popular vote.
The organization explains that “the presidential candidate receiving the most popular votes in all 50 states and D.C. will get all the electoral votes from all of the enacting states,” guaranteeing that the winner of the national popular vote would become president.
Criticisms of the compact range from the observation that it could cause a state’s electors to vote for a candidate who did not win the popular vote in that state to assertions that it would be unconstitutional.
A senior legal fellow at the Heritage Foundation, Thomas Jipping, argues that the compact would be unconstitutional without the “congressional consent” required by the Constitution’s Compact Clause.
Mr. Koza argues that the Constitution grants states the right to choose how electors for president are chosen in Article II, and that interstate compacts — such as the Colorado River Compact, the Port Authority of New York and New Jersey, and the Great Lakes Basin Compact — are already widespread.
While the constitutionality of the compact remains a question for the future, Mr. Koza argues that any amount of attention and security regarding how the president is elected puts wind in the movement’s sails.
At the moment, the National Popular Vote bill has been enacted in 15 states and the District of Columbia, accounting for 195 electoral votes. The law needs to be enacted in states accounting for 75 more electoral votes to take effect.
As it stands now, the bill has passed in at least one chamber of nine states accounting for 88 electoral votes, meaning the compact could go into effect if these states passed their pending bills.
The vice president of the New York County Lawyers Association, Richard Swanson, argues that regardless of the legality of the compact, enacting it would open the door to even more “shenanigans” around election rules.
“The sentiments behind it are worthy but the proponents of the idea haven’t fully evaluated all the gamesmanship that even their proposal could generate,” he tells the Sun.
