early and often

Senators Finally Strike Deal to Fix the Electoral Count Act

Mike Pence overseeing the January 6, 2021, joint session of Congress that confirmed Joe Biden’s election. Photo: Erin Scott - Pool/Getty Images

In the past few weeks, the House select committee on January 6 has made it even clearer that Donald Trump’s attempted 2020 election coup ultimately focused on efforts to derail Congress’s routine confirmation of Joe Biden’s Electoral College victory. Trump and his allies exploited ambiguities in the ancient Electoral Count Act of 1887 to promote several wild schemes, including an effort to coerce Vice-President Mike Pence into recognizing fake Trump electors and a move to overturn Biden electors in select states by a vote in both chambers of Congress. So a “fix” to the ECA has been job one for people in both political parties who would like to avoid another nightmare like January 6 and remove an incentive for the kind of skulduggery that shook the pillars of democracy last time around.

Like any other controversial issue these days, though, fixing the ECA requires a lot of the kind of bipartisanship that has been in short supply. The Senate filibuster keeps Democrats from handling the problem themselves, and many Republicans are loath to offend Trump, who has attacked the very idea of ECA reform (somewhat incoherently; his insurrectionist lawyer John Eastman argued the whole statute is unconstitutional). At the same time, some Democrats resent having to work on the narrow project of ECA reform with Republicans who have blocked a host of urgent Democratic voting-rights initiatives.

Nonetheless, one of those bipartisan Senate “gangs” that used to be so popular has been working quietly on ECA reform for months, and now a proposal has been unveiled by lead negotiators Susan Collins and Joe Manchin. It is being advanced in tandem with a separate measure aimed at protecting election workers. The draft proposal addresses three key problems with the existing ECA:

  1. It would limit the vice-president’s role in the counting of electoral votes to the purely administrative task of opening and counting a single state-certified slate of electors for each state.
  2. It would make it more difficult for Congress to overturn awarded electors by raising the number of members needed to trigger a vote. The threshold for such challenges would go from one House member and one Senate member to one-fifth of the membership of both chambers.
  3. It would strengthen provisions to prevent state-generated challenges to the slate of electors backing the candidate who clearly won the state’s popular vote. It would also create a fast-track process in federal courts to resolve any disputes over the facts long before Congress counts the votes.

It’s this last topic that has been most difficult. But the draft proposal would definitely keep states from postelection changes in the electoral-vote process like the ones Team Trump was encouraging Republican legislators to undertake. And it would clarify that a single legally designated authority (typically the governor) will certify electors by a set deadline. If a rogue governor seeks to reverse the results, federal judges can intervene, with a quick review by the U.S. Supreme Court.

This last provision will raise eyebrows among Democrats who aren’t exactly enamored of the Supreme Court right now. But for all their sins, Republican-appointed federal judges did not lift a finger to help Trump’s election coup, and the burden on rogue governors to justify a change of results will be very high. Plus other reforms in the proposal should significantly reduce the likelihood of Supreme Court review ever happening.

More fundamentally, some Democrats aren’t that interested in an ECA fix so long as Republicans continue to block voting-rights bills. As the Washington Post’s Jennifer Rubin rightly says, they need to focus on the achievable in this one crucial instance:

Democrats can preach all day about the need for a broader bill, and they would be right. But until they control the presidency, the House and a Senate majority sufficient to alter the filibuster, they are not going to obtain more than this.

Taking a win and coming back for more when they have the votes are the essence of democracy — the very thing Democrats are striving to protect. Civil and voting rights have always been attained incrementally (and lost abruptly). So it must be with reforms to make it harder for a replay of the coup attempt.

Timing is of the essence. Nine Republican senators were in the “gang” that produced the ECA fix, just one short of the number needed to overcome a possible filibuster. And Mitch McConnell, no fan of what Trump did on January 6, is being supportive so far. It’s significant that the bipartisan proposal came out before the House select committee on January 6 gets around to this topic. If the allegedly partisan committee’s proposal is the only one on the table, Republican support could dry up quickly. It’s a shame supporters of constitutional order have to thread the political needle to head off the clear and present danger of another attempted electoral coup. But it would be a bigger shame to do nothing and hope for the best.

More on Politics

See All
Senators Finally Strike Deal to Fix the Electoral Count Act