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Electoral Count Act Must Bind Electors To The Popular Vote Winner

To strengthen election integrity, Congress must pass legislation making it more difficult for members of Congress to object to a state's electors and for state legislators to override the popular vote.

Congressman Jamie Raskin (MD-08) objects to votes of electors from Florida on the House floor.
Congressman Jamie Raskin (MD-08) objects to votes of electors from Florida on the House floor. House Democrats challenged the validity of electoral votes on January 6, 2017. (Source: Screen grab from a Video on Congressman Jamie Raskin's YouTube Channel)

For all the theater and drama of the televised J6 hearings, the Committee's work has resulted in one good outcome: a bipartisan show of support to revise the archaic Electoral Count Act of 1887.

Several key provisions of the proposed ECA for 2022 make sense. These include requiring that only the governor of each state can submit a slate of electors to Congress, restricting the role of the Vice President in certification to be ceremonial, and imposing a higher threshold to object to certification.

In both chambers of Congress, the Republican leaders Kevin McCarthy and Mitch McConnel have announced support for the 2022 Electoral Count Act. A group of nine Republican senators has co-sponsored the legislation, indicating that a filibuster-proof majority of 60 votes is within reach if all 50 Democrats support it, as expected.

But, the provisions omit a critical element of the puzzle. They don't contain language to bind state electors to the popular vote winner. While some may argue that federalizing a state's rules regarding "faithless electors" violates the spirit of the Federalist Papers, which specified that elections are a state matter, Washington continues to play a considerable role in federal elections. The failed legislation HR.1, which President Biden dubbed as a solution to Jim Crow 2.0 state laws to disenfranchise minority voters, was laden with federal oversight and control.

The American Electoral College has no parallel anywhere in the world. Although a presidential election is national, many foreigners fail to understand that the election is actually the summary of voter preferences in the individual states.

There are 435 members in the House, apportioned to the states based on population. There are also 100 members in the Senate, two per state. Together, they constitute 535 electors. The District of Columbia was granted three electors (the equivalent of two Senators and one House representative) in 1960 after the 23rd amendment was adopted. The D.C. electors do not have representation in Congress to pass laws because the district is not a state.

So, we have 538 presidential electors. A candidate who wins the presidential election should get 270 electoral votes, one more than what constitutes a statistical tie of 269 votes.

At issue is how the electoral votes are awarded in each state. In the winner-take-all system prevalent in 48 states and the District of Columbia, the candidate that wins the popular vote, even by the slimmest of margins, is automatically awarded all of that state's Electoral College votes.

Only two states, Nebraska and Maine, do not follow this winner-take-all method. The rules are strange and subject to confusion, even abuse. The states appoint individual electors based on the popular vote winner for each Congressional district and then two electors based on the winner of the overall state-wide popular vote.

In 2008, Nebraska split its vote, as did Maine in 2016. In both cases, the move was inconsequential because the ultimate result as to who won the presidency (Barack Obama in 2008 and Donald Trump in 2016) did not change. But this did not mean that the electoral process was not subject to manipulation.

Indeed, when Trump won in 2016, shocking the establishment, a grassroots movement took shape in many states to convince the electors (a state official who is not a member of Congress) to "vote their conscience" and deny Trump a victory during certification. Under such a "faithless elector" system, an elector is not bound to cast their vote for the popular winner in the state and can choose anyone they wish, even the loser, although this has never happened. Through the 2020 election, there have been 165 instances of faithlessness when electors have chosen someone other than the popular vote winner, generally an independent or third-party candidate.

The problem is that the U.S. Constitution or federal laws do not specify rules that govern the behavior of individual electors. In 2020, the Supreme Court ruled in Chiafalo v. Washington that states are free to enforce laws that bind electors to vote for the winner of the popular vote in their state. But activists in states do not want their hands tied. They want to retain the ability to attempt to overthrow an election even if the candidate has won the people's vote.

The 2022 ECA law is badly needed to make American elections more straightforward after the votes have been cast. We are fine with ceremonial certifications of the winner on January 6, but there ought not to be the slightest confusion about who that winner is. The best way to avoid this confusion and strengthen election integrity is to pass a federal law that binds each state elector to the popular vote winner.

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