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Out of the ashes of Democrats’ failed effort to set a national voting rights standard may come a targeted bipartisan bill to ward against insurrection 2.0.
At issue is the Electoral Count Act, the confusing and poorly written law from 1887 that dictates how Electoral College votes are tabulated after presidential elections.
It was by exploiting this gobbledygook in US law that former President Donald Trump, following the lead of the lawyer John Eastman, hoped to overturn the 2020 election results and remain in the White House.
Three quick things before we go further into the Electoral Count Act:
1. Trump confirmed, again, that he wanted to overturn the election. In a statement over the weekend, Trump reasoned that current efforts to reform the Electoral Count Act prove what he’s said all along – that then-Vice President Mike Pence could have ignored the election results and made Trump President.
Trump actually said this of Pence and sent it to his followers: “Unfortunately, he didn’t exercise that power, he could have overturned the Election!”
CNN’s Chris Cillizza writes that Trump’s comment might actually push lawmakers to change the law.
2. The effort to overturn the election went further than we realize. The House committee investigating the January 6 insurrection has, according to CNN’s report, issued subpoenas for “14 Republicans from seven states who served on bogus slates of Trump electors in 2020 as part of the Trump campaign’s scheme to subvert the Electoral College.”
3. The Electoral Count Act is not well written. If you don’t think the current language under the Electoral Count Act is gobbledygook, read the text here. It is impenetrable.
Election reform takes time. For an indication of how difficult it can be to change US election law, take note that the Electoral Count Act wasn’t passed until a full decade after the disputed election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. Hayes got the presidency even though he won neither the popular vote nor the Electoral College.
The Electoral Count Act builds on the 12th Amendment, which was ratified four years after the disputed presidential election of 1800.
Syllabus for the Electoral College. States are responsible for conducting their elections, but the federal Electoral Count Act lays out, among other things:
- A specific timeline for states to complete challenges to results.
- A method for them to certify their results.
- A format for transporting Electoral College certifications to Capitol Hill.
- Stage directions for how exactly the counting of electoral votes should occur on January 6 after every presidential election.
- Guidelines for how to deal with dueling slates of electors or challenges to election results.
Democrats are coming around. Lawmakers like Senate Majority Leader Chuck Schumer have previously dismissed efforts to focus on the Electoral Count Act as insufficient safeguards for elections.
The sticking point had been that Democrats want to set a national standard to protect voting rights for people leading up to the next election.
Reforming the Electoral Count Act would only seek to guarantee that the results stand, which should maybe be a priority after Trump tried to overturn the 2020 results.
But it would do nothing to make sure everyone can vote. Democrats had wanted to address the partisan gerrymandering that is currently being applied to congressional districts and the new curbs on mail-in ballots and early voting in key states. CNN’s Fredreka Schouten has written a comparison of Democrats’ voting rights reform efforts.
Now that those larger efforts seem dead, Democrats are coming on board with Republicans interested in reforming the Electoral Count Act.
Trump is worried about this. He has no interest in making sure Congress sticks by election results.
In his weekend statement, he dismissed collaborators on the effort as “RINO Republicans, like Wacky Susan Collins.”
Bipartisan Zoom meetings. Collins, who was among the few Senate Republicans to vote to convict Trump in his impeachment trial after the insurrection, may not be a barometer for most of the party. But she has been hosting bipartisan Zoom meetings on how to fix the Electoral Count Act. It’s one of two efforts under discussion.
“This is not a small matter,” the Maine Republican told ABC’s George Stephanopoulos on Sunday. “This 1887 law governs the counting and the certification of the presidential vote. And we saw, on January 6th of 2021, how ambiguities, simple (ph) law, were exploited. We need to prevent that from happening again.”
She’s working with Sen. Joe Manchin, the West Virginia Democrat whose unwillingness to pass legislation without help from Republicans helped doom the more expansive voting rights bill he helped write.
He told reporters Monday that this bipartisan effort is real.
“Almost certainly we’ll have a bipartisan bill there, fix what happened, the insurrection, stop that from ever happening again,” Manchin said.
How exactly would they update the law? It’s not yet clear, but there are two priorities, according to Collins:
- “…make very clear that the vice president’s role is simply ministerial, that he has no ability to halt the count…”
- “…raise the threshold from one House member, one senator, for triggering a challenge to a vote count submitted by the states.”
She said support could be “overwhelming.”
Senate Minority Leader Mitch McConnell, another frequent Trump target but one who did not vote to impeach him, said recently he is open to updating the “flawed” law.
Schumer, despite his previous criticism, has turned to pushing bipartisan talks.
Are there 60 senators for this reform? This will turn into a numbers game if a bipartisan deal can be reached. There may well be Democrats who oppose updates to the Electoral Count Act for being insufficient.
If every Democrat and independent who usually votes with them supports it, 10 Senate Republicans would still have to buy in to defeat a filibuster.
Trump is clearly planning another run for the White House, and his opposition to clarifying the law will only grow.
If you want an idea of his sway in the party, consider that not even Collins wanted to criticize him later in that same Stephanopoulos interview. Nor would she rule out supporting him – the former President she voted to impeach – in the future.
Read this exchange, which occurred after Stephanopoulos noted Trump has said he would pardon January 6 insurrection participants if elected.
STEPHANOPOULOS: … can you imagine any circumstances where you could support his election in 2024?
COLLINS: Well, we’re a long ways from 2024 …
She later said in the interview that “it’s very unlikely” she’d support Trump.