Senators are close to completing a bill to revise the Electoral Count Act of 1887, I’m told. The measure would fix ambiguities in the ECA that Trump directly exploited with his wide-ranging 2020 plot.
“This is a clear and present threat to democracy,” Sen. Angus King (I-Maine), who is spearheading the bill, told me.
In coming weeks, it will be introduced by King and others, including Sens. Richard J. Durbin (D-Ill.) and Amy Klobuchar (D-Minn.). This will be well after the voting rights debate, so it doesn’t defuse energy toward that paramount goal.
“It’s very important to emphasize that this is not a solution to the voting rights issues being raised across the country,” King said of the bill.
The bill seeks to block every pathway to a subverted election that Trump’s corruption exposed. There are three main ones. First, Trump pressured GOP state legislatures to appoint rogue presidential electors in defiance of state popular votes.
Blocking these pathways raises a thorny problem. The drafters of the bill want to make it harder for members of Congress to invalidate — based on false claims of election fraud — a legitimate slate of electors from a state.
But they want to accomplish this without making it harder for Congress to invalidate a phony slate appointed by a rogue legislature and/or governor.
Here’s the solution they hit upon, according to King’s office.
Under the current ECA, it takes only a single member from each chamber to object to a slate of electors. After this, a majority in each chamber must sustain the objection to ensure those electors don’t get counted.
So the new bill would require a much larger bloc of members in each chamber to initiate an objection; drafters may set this at one-third. It would also require a supermajority in each chamber to sustain the objection; drafters may set this at three-fifths.
So if, say, Republicans in Congress simply refused to count a slate of legitimate electors for the Democratic candidate, they would need supermajorities to pull it off.
But what if a GOP-controlled state legislature and/or governor appointed fake electors in defiance of the voting? Under the current ECA, a GOP-controlled House and Senate could overrule any Democratic objection and theoretically count those electors.
So the bill creates backstops. First, it seeks to create a procedure for judicial review when a state government fails to follow its own lawful, preexisting procedures in appointing electors (in all states, this process is tied to the popular vote).
Second, the bill directs Congress to count the electors validated by the court and not the phony ones appointed by a state legislature and/or governor in that situation.
“The key point is that the state can’t change the rules after the election,” King told me. All of this reduces Congress’s role to the largely ceremonial counting of electors.
Finally, the bill clarifies the vice president’s role to unequivocally remove any power to make any decree about whether electors will be counted.
This would help “Trump-proof” future presidential elections, making it harder to pull off precisely the scheme Trump attempted after the 2020 vote.
It’s crucial to stress that ECA ambiguities undoubtedly helped spark Jan. 6. The very idea that the ECA left open these avenues helped inspire rioters to attack the Capitol, to pressure lawmakers and Trump’s vice president to exploit them.
Will 10 Republican senators support these reforms? They are not liable to typical GOP objections to democratic protections, such as the (phony) arguments that they aren’t needed or constitute the federal government trampling on states.
This would merely revise an existing statute to make it even less likely that Trump (or an imitator) would successfully pressure Republicans to carry out the same scheme again. Which would make it less likely to be attempted at all.
Isn’t that something Republicans want? Maybe. Punchbowl News reports that four GOP senators — Susan Collins of Maine, Mitt Romney of Utah, Thom Tillis of North Carolina and Roger Wicker of Mississippi — have been generally discussing ECA reform.
But this may be a bait and switch, designed to make it easier for Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to refuse to suspend the filibuster to protect voting rights by invoking the promise of bipartisan reform later. Once voting rights crashes, Republicans might suddenly lose interest in ECA reform.
But King said he’s determined to try to win Republicans. “I can’t count 10 Republicans right now, but I don’t think it’s unlikely,” King told me. “I see this as more of a bipartisan issue.”
If not, will Manchin and Sinema oppose a filibuster carve-out for even this no-brainer of a reform to avert a stolen 2024? We may soon find out.