Republicans are in full-scale panic about Doug Mastriano, the right-wing extremist who won the GOP primary for Pennsylvania governor this week. They fear that his active collaboration in Donald Trump’s coup attempt, along with his crackpot views, might squander a big gubernatorial pickup opportunity in this crucial swing state.
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In a world where such GOP angst might be channeled in a constructive direction, it could result in reforms that render the antidemocratic implications of Mastriano’s victory less alarming. Chief among these is fixing the Electoral Count Act of 1887, or ECA.
After all, Republican strategists appear to recognize just how radical Mastriano truly is. So will their counterparts in Congress act to protect the system from the threat he poses? Or are they worried only about the threat his extremism poses to GOP electability?
If it’s the latter, Democrats will have to seize this moment to press the case for reform much harder. And they can go further: They can focus the public discussion more sharply on the precise nature of the threat, as newly illustrated by the success of Mastriano and other candidates like him.
This week’s primaries offer a new hook for this. In addition to Mastriano, Rep. Ted Budd won the GOP primary for Senate in North Carolina. Budd voted to object to Joe Biden’s electors after the Jan. 6, 2021, insurrection attempt and has refused to say Biden legitimately won. Both have Trump’s support.
Meanwhile, Georgia GOP primary voters might nominate the Trump-endorsed Rep. Jody Hice for secretary of state next Tuesday. While anti-Trump Georgia Gov. Brian Kemp will probably survive his primary — a good development — Hice is running on an implicit vow to subvert future elections. He can create great mischief.
All this strengthens the case for ECA reform in a new way, highlighting with fresh specificity which protections we need.
“Hopefully the Pennsylvania results crystallize the coming threat,” Sen. Chris Murphy (D-Conn.), a member of a bipartisan group of senators examining fixes to the ECA, told me.
So what should this look like? Let’s start with the threat posed by Mastriano, who has endorsed the principle that the popular vote isn’t binding when it comes to state certification of presidential electors.
As governor, Mastriano could handpick a secretary of state who might refuse to certify a Democratic presidential candidate’s legitimate popular-vote win in 2024. Mastriano could then certify sham electors for the Republican candidate in defiance of the popular vote.
This might be unlawful. As in other states, the Pennsylvania legislature exercised its constitutional role in determining the “manner” of appointment of electors by passing a law empowering the voters to pick the electors of the candidate they prefer, which the state then certifies.
Of course, if Mastriano becomes governor, the GOP-controlled legislature could pass a new law giving itself and/or the governor the sole authority to determine certification, as constitutional law expert Laurence Tribe points out.
But even if that didn’t happen, Mastriano — who appears to believe God’s word permits him to nullify elections — might happily break the law to certify the loser’s electors. If he did this, and a GOP-controlled House of Representatives counted them, they would probably stand.
“All Trump needs to throw out American democracy is one governor and a majority in the House,” Murphy told me. “He’s arguably very close to that arrangement.”
That’s where ECA reform comes in. One crucial fix would require Congress to count only the electors the courts determine to be legitimate. If a governor certified sham electors — or if a state-level dispute erupted over which electors to certify, say between Kemp and Hice — court challenges would follow. Congress would have to count the rightful winner.
Such a reform is being considered by the bipartisan group, Murphy told me. This idea has been urged by outside experts.
The difficulty lies in securing that reform while also preventing a corrupt Congress — a GOP-controlled House and Senate with more Ted Budds in it, for example — from refusing to count legitimate electors to prevent a rightful winner from claiming an electoral college majority.
As Murphy put it, the challenge is to “make it harder both for a governor to send a false certification to Congress, and for Congress to overturn a state certification.”
One approach would build in that judicial backstop against state certification of sham electors while also raising the threshold for Congress to overturn legitimate electors. Murphy says this is being examined.
Will 10 Republican senators vote for such reforms? We still don’t know. On the other side, a few Democrats might defect if the package doesn’t include voting rights protections.
For now, these GOP primaries are highlighting the need for a much more forceful effort to communicate with the public the precise nature of the threat the elections are highlighting. “Everybody that cares about upholding democracy has got to start ringing alarm bells,” Murphy told me.
Trump’s grip on these primaries raises an unsettling question: At this point, is our system even capable of protecting itself from the gathering threat?
Sign up for a weekly roundup of thought-provoking ideas and debates
In a world where such GOP angst might be channeled in a constructive direction, it could result in reforms that render the antidemocratic implications of Mastriano’s victory less alarming. Chief among these is fixing the Electoral Count Act of 1887, or ECA.
After all, Republican strategists appear to recognize just how radical Mastriano truly is. So will their counterparts in Congress act to protect the system from the threat he poses? Or are they worried only about the threat his extremism poses to GOP electability?
If it’s the latter, Democrats will have to seize this moment to press the case for reform much harder. And they can go further: They can focus the public discussion more sharply on the precise nature of the threat, as newly illustrated by the success of Mastriano and other candidates like him.
This week’s primaries offer a new hook for this. In addition to Mastriano, Rep. Ted Budd won the GOP primary for Senate in North Carolina. Budd voted to object to Joe Biden’s electors after the Jan. 6, 2021, insurrection attempt and has refused to say Biden legitimately won. Both have Trump’s support.
Meanwhile, Georgia GOP primary voters might nominate the Trump-endorsed Rep. Jody Hice for secretary of state next Tuesday. While anti-Trump Georgia Gov. Brian Kemp will probably survive his primary — a good development — Hice is running on an implicit vow to subvert future elections. He can create great mischief.
All this strengthens the case for ECA reform in a new way, highlighting with fresh specificity which protections we need.
“Hopefully the Pennsylvania results crystallize the coming threat,” Sen. Chris Murphy (D-Conn.), a member of a bipartisan group of senators examining fixes to the ECA, told me.
So what should this look like? Let’s start with the threat posed by Mastriano, who has endorsed the principle that the popular vote isn’t binding when it comes to state certification of presidential electors.
As governor, Mastriano could handpick a secretary of state who might refuse to certify a Democratic presidential candidate’s legitimate popular-vote win in 2024. Mastriano could then certify sham electors for the Republican candidate in defiance of the popular vote.
This might be unlawful. As in other states, the Pennsylvania legislature exercised its constitutional role in determining the “manner” of appointment of electors by passing a law empowering the voters to pick the electors of the candidate they prefer, which the state then certifies.
Of course, if Mastriano becomes governor, the GOP-controlled legislature could pass a new law giving itself and/or the governor the sole authority to determine certification, as constitutional law expert Laurence Tribe points out.
But even if that didn’t happen, Mastriano — who appears to believe God’s word permits him to nullify elections — might happily break the law to certify the loser’s electors. If he did this, and a GOP-controlled House of Representatives counted them, they would probably stand.
“All Trump needs to throw out American democracy is one governor and a majority in the House,” Murphy told me. “He’s arguably very close to that arrangement.”
That’s where ECA reform comes in. One crucial fix would require Congress to count only the electors the courts determine to be legitimate. If a governor certified sham electors — or if a state-level dispute erupted over which electors to certify, say between Kemp and Hice — court challenges would follow. Congress would have to count the rightful winner.
Such a reform is being considered by the bipartisan group, Murphy told me. This idea has been urged by outside experts.
The difficulty lies in securing that reform while also preventing a corrupt Congress — a GOP-controlled House and Senate with more Ted Budds in it, for example — from refusing to count legitimate electors to prevent a rightful winner from claiming an electoral college majority.
As Murphy put it, the challenge is to “make it harder both for a governor to send a false certification to Congress, and for Congress to overturn a state certification.”
One approach would build in that judicial backstop against state certification of sham electors while also raising the threshold for Congress to overturn legitimate electors. Murphy says this is being examined.
Will 10 Republican senators vote for such reforms? We still don’t know. On the other side, a few Democrats might defect if the package doesn’t include voting rights protections.
For now, these GOP primaries are highlighting the need for a much more forceful effort to communicate with the public the precise nature of the threat the elections are highlighting. “Everybody that cares about upholding democracy has got to start ringing alarm bells,” Murphy told me.
Trump’s grip on these primaries raises an unsettling question: At this point, is our system even capable of protecting itself from the gathering threat?
