Whatever happened to reforming the Electoral Count Act (ECA)? Earlier this year, Democrats were confident they would be able to pass some sort of reform to the 1887 law that dictates how election results are certified. But time for the 117th Congress is running out, and pro-democracy groups and election law experts have begun to worry that the lame duck session could wrap up without the legislation making it across the finish line.
“The closer you get to the 2024 cycle, it’s not helpful,” Holly Idelson, a policy advocate at the nonpartisan think tank Protect Democracy, told TPM. “We really think it’s vital that this get done this session. That is a sentiment we’ve heard from many believers as well.”
“If it doesn’t pass in the lame-duck session, I don’t expect the presumptive incoming Speaker of the House, Kevin McCarthy, to give it a vote in the New House,” election law expert Rick Hasen recently wrote in Slate.
A refresher: Leading up to the 2020 election, Trump and his cronies heaped immense pressure on Vice President Mike Pence to throw out the results when Congress certified the vote tallies on January 6. Conservative lawyer John Eastman wrote up a six-point plan arguing that Pence had the power to do exactly that. It hinged on exploiting the ECA’s vague language to argue that Pence had the power to overturn the result and declare Trump the winner. Obviously, that plan didn’t entirely work — but it did spawn considerable chaos and, eventually, violence.
Congresspeople have since produced two separate bills to repair holes in the old statute: The House’s Presidential Elections Reform Act, introduced by Representatives Zoe Lofgren (D-CA) and Liz Cheney (R-WY), passed in September with a bipartisan majority of 229-203. Nine Republicans supported the measure.
The Senate’s Electoral Count Reform and Presidential Transition Improvement Act was introduced by Senators Susan Collins (R-MA) and Joe Manchin (D-WV) in July. It is co-sponsored by 16 Republicans, and was voted out of the Senate Rules Committee. But it has yet to be scheduled for a full vote in the Senate.
Senate supporters of the legislation are now running out of time to forge a clear path for their bill before the start of the new Congress, when Republicans will take control of the House.
“I’m deeply concerned,” Matthew A. Seligman, a legal scholar who has closely tracked Trump’s abuse of the ECA and the efforts to reform it told the Washington Post’s Greg Sargent. “It’s getting late. I’m concerned that things are slipping.”
The Senate version of the bill contains differences from the House version, which will need to be reconciled before heading to President Biden’s desk.
At this point, the Senate’s best path might involve attaching ECA reform to another bill — one that has to pass before the next session of Congress, Idelson said.
“I think the conversation, and just the realities of time in the lame duck, increasingly point towards it more likely being included in an end of the year package, be it the National Defense Authorization Act or more likely the omnibus,” Idelson told TPM.
Idelson suggested that the most likely route forward would be that the Senate pass the bill, potentially with changes to bring it closer to the House’s version, and the House vote on it as part of a package. Whether Republican support exists to do so remains to be seen.
Some of the bill’s sponsors appear to be eyeing the same path: Speaking at an election integrity event on Wednesday, Manchin said that their reform bill was “ready” and that the omnibus bill is “the appropriate place to put it.”
Senator Amy Klobuchar (D-MI) later said that the National Defense Authorization Act was another option, but “the omnibus is looking more and more promising.”
Either way, it’s critical that some kind of adjustment to the 135-year-old statute pass as early as possible, Idelson told TPM. Its chances in a House with a Trumpified Republican leadership look considerably dimmer. “And once you start to think about who the players are and the politics get a little sharper, it becomes much more complicated,” she said.