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Safeguarding the electoral count before it’s too late

Bipartisan bill aims to update 1887 law and protect the vote count from would-be autocrats.

An "I voted" sticker on a Las Vegas street on Friday, Nov. 6, 2020.BRIDGET BENNETT/NYT

If the Jan. 6 committee hearings have taught us anything, it is that this nation must never again leave itself vulnerable to would-be autocrats intent on retaining power no matter what the voters have said.

What has also become clear is that the 135-year-old law which governs the arcane process for certifying the election of a president is not adequate to that task.

Even as the House committee investigating the day the peaceful transfer of power was at risk, another bipartisan group of 16 senators, led by Republican Susan Collins of Maine and Democrat Joe Manchin of West Virginia, has been at work crafting a bill that would update the electoral counting process and put significant safeguards in place to prevent that process from being hijacked.


This week the group announced agreement on a bill, the Electoral Count Reform Act of 2022, aimed at doing just that. The fact that this update of the antiquated 1887 law already has buy-in from nine Senate Republicans — one short of the 10 needed to get it through the filibuster process — gives it a certain needed momentum.

It comes as the Jan. 6 committee has documented in excruciating detail efforts by Donald Trump and his followers to disrupt the orderly and largely ceremonial counting of electoral votes on Jan. 6, 2021, and as a Georgia grand jury continues to sort through efforts in that state to certify a fraudulent slate of electors committed to Trump.

The bill would make clear that the constitutional role of the vice president as the presiding officer of the joint session of Congress on that day “is solely ministerial and that he or she does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors,” according to a summary of the bill.


No amount of presidential bullying, tweeting, or even gallows built on the Capitol grounds labeled with the vice president’s name would be able to change that. No future vice president’s life will be put at risk because an angry mob has been told otherwise.

Other aspects of the bill would set up a fail-safe system for ensuring the sanctity of each state’s slate of electors:

  • Unless otherwise specified by a state law or constitution, it would be the governor of each state who would be charged with certifying that slate of electors.
  • Aggrieved presidential candidates could avail themselves of an expedited review before a three-judge panel with the right of direct appeal to the US Supreme Court.
  • Congress would be required to defer to slates of electors either certified by those governors or by the courts.
  • The threshold in Congress to raise objections to electors would be increased to one-fifth of both the House and the Senate, rather than the current single member of each chamber — a move aimed at discouraging frivolous objections.
  • And it protects the result of the popular vote in each state by removing a provision in an outdated 1845 law that could allow state lawmakers to declare a “failed election” in their state, the popular vote notwithstanding.

Let’s call that the John Eastman rule after the Trump-besotted attorney who urged a Republican Pennsylvania legislator to lead an effort there (in a Dec. 4, 2020 email) to have the Legislature declare “the slate of electors certified by the governor,” and chosen by the voters, declared “null and void.”

No system constructed by man will ever be totally fail-safe. Corruption of the political process can happen at any level, but the bill is predicated on the belief that it is unlikely to happen at all levels simultaneously — that there is unlikely to be a pandemic of political corruption. We also have seen how a mere handful of good and decent officials at all levels who put the rule of law ahead of the Rule of Trump made a difference on Jan. 6 and the days leading up to it.

The bill isn’t the sweeping voting reform some Democrats had hoped for, although a companion bill — the Enhanced Election Security and Protection Act — proposes some increased penalties for attempts to intimidate election officials, some new safeguards for mail-in voting, and improvements in Postal Service handling of ballots.


But this restructuring of the Electoral Count law can close some loopholes and eliminate those ambiguities ripe for exploitation by the next candidate-turned-tyrant bent on overturning the will of the people. It is an essential piece of legislation that should be in place long before the next presidential election rolls around.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.