Republican Senate leaders have suddenly expressed some openness to changing the law that Donald Trump tried to use to steal a second term in office, leading to two obvious questions: Huh? Why?
The Electoral Count Act, a 19th century law that governs the counting of Electoral College votes, has been the topic of discussion — at least among scholars and elected Democrats — for much of the past year, after Donald Trump tried to game its vague language by pressuring then-Vice President Mike Pence to reject certain states’ Electoral College votes for Joe Biden.
Elected Republicans have shown little interest in changing the law — until now. Still, without their support for any voting rights legislation (and it’s clear that’s not happening) some Democrats oppose reforming the ECA on its own. Sen. Raphael Warnock (D-GA), for example, called the prospect of a standalone ECA reform bill “a distraction” and “a cynical political maneuver by people who are trying to rig the elections in our country.”
The Senate’s first- and second-ranking Republicans, Mitch McConnell (R-KY) and John Thune (R-SD) broached the topic for the first time this week.
“It obviously has some flaws. And it is worth, I think, discussing,” McConnell told Politico of the 1887 law. Thune told Axios that, in contrast with Democrats’ other bills to reform election laws and add voting rights protections, “with the Electoral Count Act, as we saw last time around, there are some things there that, I think, could be corrected.”
They’re not alone: Sen. Shelley Moore Capito (R-WV) told Politico the ECA was a “weak point,” and Sen. Mitt Romney (R-UT) said “It is something worth evaluating, and looking for other ways to make sure there is not a way to corrupt the counting process.”
Sen. Susan Collins (R-ME) separately told reporters Wednesday that the law was “vague and ambiguous” and said it “contributed to some of the confusion on Jan. 6.”
“A change that I would like to see, personally, is to make very clear that the vice president does not have the power to overturn the electoral counts of the states,” she added. Then-Vice President Mike Pence didn’t give in to Trump’s pressure to overturn the election, Collins said, “but what if he had? Or what if a future vice president decided to play political games with the Electoral Count Act?”
Curiously, that seemed to be a switch from Collins’ statement Tuesday to Axios: “It seems to me we have a good system for the Electoral College to act and one of the important moments of January 6 was that we returned and finished our work under that law,” she said.
At What Cost?
So a handful of Republicans are now open to, maybe, addressing a clear weak point in American elections law. Sen. Warnock raised the question many Democrats are now asking: At what cost?
The fear among Democrats is that the cost may, in fact, be momentum for other voting rights priorities. Senate Majority Leader Chuck Schumer (D-NY) said this week that the Senate would try again to pass voting rights legislation, even though Republicans filibustered the Freedom to Vote Act in a party-line vote in November.
Schumer said Monday that he would push “reforming the Senate rules” if the vote fails, but Sens. Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV) appear to still oppose changing filibuster rules for voting rights, setting up another exercise in futility.
On the other hand, Sinema and Manchin both told Politico that they supported working on the ECA. Manchin called it a “good start, at least they’ve got people talking now.”
Schumer doesn’t seem interested without movement on Democrats’ larger voting rights priorities. He told Axios, “If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?”
“What good is it to certify the election if I don’t get to cast my vote in the first place?” Warnock said Wednesday, calling for Republicans to stop filibustering Democrats’ broader voting rights packages.
Marc Elias, the prominent Democratic elections lawyer, similarly tweeted Sunday that he had a suspicion that “a cynical Mitch McConnell will offer to pass Electoral Count Act reform if Democrats drop the rest of the Freedom to Vote Act.”
“Every Democrat should reject it,” he said. “The ECA alone is not the problem. GOP suppression and subversion is.”
Kate Riga contributed reporting.