When it recently emerged that there was some Republican interest in helping Democrats fix the Electoral Count Act of 1887 — the arcane law that played out according to its dangerously ambiguous terms on January 6, 2021 — those same Democrats were at first a bit annoyed. With the Senate on the brink of a final, doomed push to overcome a GOP filibuster to enact federal voting-rights legislation, talk of a bipartisan ECA fix seemed a distraction at best and a misleading feint at worst.
But now that the voting-rights push is at an end (for this Congress, anyway), perhaps the opportunity to reduce the odds of a 2024 presidential-election coup will be more welcome to Democrats. And the identity of the Republicans who might cooperate is beginning to come into view. The latest is the unlikely figure of House Minority Leader Kevin McCarthy. According to Politico, McCarthy has “joined his Senate counterpart [Mitch McConnell] in entertaining potential reform of the 135-year-old law that Donald Trump allies used to fuel their case against certification of the 2020 election.”
The Californian, who is the odds-on favorite to become Speaker next year, wasn’t very specific about the ECA but allowed that he had no problem with considering an effort to “modernize” it.
That’s interesting in part because McCarthy won’t so much as go to the restroom these days without a hall pass from Trump or his surrogates in the House Republican Conference. So it appears no one in MAGA-land has warned him to stay away from the subject, at least thus far.
In truth, no one knows how Trump feels about changing the Electoral Count Act, if he’s aware of it at all. His lawyer John Eastman, in his infamous memo laying out scenarios for the theft of the 2020 presidential election to be executed on January 6, argued that the ECA was unconstitutional. But that was his position because following the law interfered with very dubious interpretations of the Constitution, under which, among other things, Vice-President Mike Pence had plenary powers to count electors as he wished.
In 2025, when the next Trump electoral coup could take shape, Kamala Harris will be in the vice-presidential chair. It’s also entirely possible Republicans will control both houses of Congress then, which means the ECA might enable them to overturn Democratic electors under the “challenge” provisions of the law (it had no chance of working in 2021 since Democrats controlled both chambers). But that’s a lot of hypotheticals, and the truth is Trump will take whatever tack he needs to accomplish his own sinister goals, and McCarthy isn’t likely to buck him.
For the time being, bipartisan reform of the ECA seems to be on the table, and Democrats would be wise to strike while the iron is at least lukewarm and see what kind of deal they can get. If reform happens this year, it could be achieved by a united bloc of congressional Democrats and the ten Republican senators needed to preempt or overcome a potential filibuster. McCarthy might be irrelevant. But it’s always useful to watch him to gauge the future course of Republicans who look to Mar-a-Lago for direction much like a strict Catholic looks to the Vatican.