The Washington PostDemocracy Dies in Darkness

GOP floats tweaks to vote-counting law targeted by Trump as Democrats make voting rights push

Senate Minority Leader Mitch McConnell speaks during his weekly news conference Jan. 4 on Capitol Hill.
Senate Minority Leader Mitch McConnell speaks during his weekly news conference Jan. 4 on Capitol Hill. (Jabin Botsford/The Washington Post)

Ahead of the first anniversary of the Capitol insurrection, several Senate Republicans said they were open to overhauling the presidential vote certification procedure in Congress that was targeted by former president Donald Trump and allies as they sought to overturn his 2020 election loss.

That procedure was interrupted on Jan. 6, 2021, by violent pro-Trump rioters who breached the Capitol as Republican challenges to electoral votes were being debated in the House and Senate. Only early the next morning was the process completed, after lawmakers voted to reject objections to two states’ electoral tallies and certify Joe Biden as the election’s winner.

Senate Minority Leader Mitch McConnell (R-Ky.) said Wednesday that changes to the Electoral Count Act, the 1887 law governing the congressional certification process, were “worth discussing,” while several other GOP senators said they were interested in clarifying ambiguous provisions in the statute and potentially raising the threshold for a challenge to a state’s electoral results.

The Post’s Jacqueline Alemany breaks down what’s in the Senate Democrats' revised voting rights bill. (Video: Mahlia Posey/The Washington Post)

Under current law, it requires only one House member and one senator to force a debate and vote on whether to accept a state’s slate of electors. While Democrats had previously objected to some GOP electors in prior elections, the 2021 objections were unique in their scale, with as many as six states targeted, and in the support they enjoyed from an incumbent president who had refused to concede the election.

What is the Electoral Count Act, and why are people calling for it to be reformed as we near Jan. 6?

This week’s expressions of support, modest as they are, amount to the most significant Republican backing for modifications to the nation’s democratic infrastructure in response to the stresses of the 2020 election.

But top Democrats have rebuffed that talk as they seek to pass a much broader package of election-related legislation. Those bills are aimed at countering new GOP-written state laws that Democrats say are aimed at making it harder for citizens to vote and easier for legislatures to throw out results they don’t support.

Senate Majority Leader Charles E. Schumer (D-N.Y.) told reporters Tuesday that focusing solely on electoral vote counting procedures “makes no sense,” and he said Democrats would continue pushing for the full suite of elections and campaign-finance laws that they have sought to advance for several years.

“If you’re going to rig the game, and then say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” he said. Republicans, he added, “want to now both rig the game and rig the count. But to just say we won’t rig the count but we’re going to rig the game makes no sense whatsoever.”

The White House on Wednesday also said that merely addressing the mechanism of the electoral college count was “no substitute” for the broader bills, the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, which have languished in the Senate because of GOP opposition.

Spokesman Andrew Bates said that President Biden “has been crystal clear that the pending voting rights legislation . . . [is] essential for protecting the constitutional right to vote, the rule of law, and the integrity of our elections.”

“There is no substitute. Period,” he added.

United behind McConnell, Republicans are using the Senate’s filibuster rule, which requires a 60-vote supermajority to overcome, to block progress on the Democratic voting bills. Schumer has vowed to pursue changes to the Senate rules in the coming weeks to skirt that opposition, though chances of success now appear faint: He needs all 50 members of his caucus to back any changes, and at least two — Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) — are publicly against eroding the 60-vote threshold.

Sinema holds firm in support of the filibuster, imperiling late voting rights push

Manchin, however, said Wednesday that he was supportive of the burgeoning bipartisan chatter about the Electoral Count Act.

“Anything that we can do to enhance the process to make it much more secure is something we should be looking into,” he said, adding, “It’s just encouraging to hear that both Democrats and Republicans are both concerned.”

But other Democrats and allied groups, while acknowledging the weaknesses in the existing procedure, also called the GOP trial balloons a distraction. Sen. Tim Kaine (D-Va.) said a flawed electoral vote count is “a problem that occurs one day out of every four years, but it doesn’t affect the disenfranchisement efforts that are going on in states all over the country.”

He expressed openness to modifying the Electoral Count Act, but only in conjunction with other, more thoroughgoing voting rights protections.

“I still think the law’s relatively clear, but if we can eliminate ambiguities that would lead a Trump-like person to try to raise hell, then that would be a good thing,” he said.

The Electoral Count Act was written after a series of close presidential elections, including the hotly disputed 1876 contest between Rutherford B. Hayes and Samuel J. Tilden that ended in an infamous deal that installed Hayes, the Republican, in return for the withdrawal of federal troops from the postbellum South, marking the end of Reconstruction and the dawn of the Jim Crow era. But the provisions of the law went largely untested for more than a century.

The Jan. 6, 2021, electoral count proceedings became in the weeks after the 2020 election a central focus of Trump allies’ attempts to wrest the presidency away from Biden under a novel and far-fetched legal theory that gave the vice president — who presides over the proceeding — plenary power to reject states’ duly certified electoral votes.

Ahead of Jan. 6, Willard hotel in downtown D.C. was a Trump team ‘command center’ for effort to deny Biden the presidency

A confidential memo drafted by law professor John Eastman that gained currency among some senior Trump loyalists envisioned a scenario in which Vice President Mike Pence would simply refuse to count votes from seven contested states, setting off a cascade of potential outcomes in which Trump could win the presidency instead of Biden.

But Pence concluded that he had no such power, a position he made public in a letter released shortly before the count began — and shortly before the mob stormed the Capitol, with some rioters calling for Pence’s execution.

“I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no Vice President in American history has ever asserted such authority,” Pence said in the letter.

Multiple Republicans said Wednesday that, at a minimum, the Electoral Count Act could be clarified to make crystal clear that the vice president has no actual power to accept or reject electoral votes.

“That law was probably not intended to empower the vice president, and I don’t believe it does. But it’s vague enough that people can grab hold of that and think that the vice president has authority that the vice president shouldn’t have,” said Sen. Roy Blunt (Mo.), the top Republican on the Senate Rules and Administration Committee.

Other Republicans, including Sen. Susan Collins (Maine), said they would be willing to consider whether it should take more than one member of each chamber — potentially many more — to advance an objection. And scholars across ideological and political divides have identified other weaknesses in the 1887 law, including a complete lack of specificity on how states are supposed to respond if Congress refuses to accept their electoral votes.

“There are a lot of members who agree that the Electoral Count Act is absolutely key here. What if we had had a vice president who wasn’t strong the way Vice President Pence was and refused to certify the results?” Collins said. “So shouldn’t we look at a law that’s been ambiguous and make it very clear?”

How Republicans became the party of Trump’s election lie after Jan. 6

But to Democrats and their allies, the timing of the sudden GOP interest in addressing electoral vote counting procedure is suspicious — coming as Schumer leads a final all-hands-on-deck push to try to get the voting rights bills through the Senate. Not only do they argue that the 1887 law is a distraction, but they also insist that it isn’t even in the same realm of political debate as GOP-controlled legislatures across the country seek to tighten access to the ballot.

Adam Bozzi, a spokesman for End Citizens United, a liberal group that has spent millions to advance the Democratic voting bills, called the electoral-count chatter “a classic McConnell stall tactic” that should not be taken at face value.

“Mitch McConnell knows that Democrats have momentum and are getting ready to pass bills that will actually protect everyone’s freedom to vote and have their votes counted. That’s why he’s now, at the last minute, saying he might be open to negotiating on a much more narrow and less meaningful bill,” he said. “The Electoral Count Act is important but does nothing to address voter restrictions or most of the efforts to sabotage elections.”

Things could evolve, however, if Democrats ultimately fail to advance the broader legislation in the coming weeks. At least one Republican said Wednesday he hoped both parties could ultimately cooperate given the immense stakes for future presidential elections.

“If there was an election bill that had any chance of actually becoming law, it would be unfortunate to miss the opportunity,” Blunt said.

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