While voting rights legislation is pretty much doomed due to Republican opposition and moderate Democrats’ decision to keep the filibuster intact,
While voting rights legislation is pretty much doomed due to Republican opposition and moderate Democrats’ decision to keep the filibuster intact, there’s still hope for a much narrower election reform: changes to the Electoral Count Act (ECA).
A bipartisan group of roughly 12 lawmakers, including Sens. Susan Collins (R-ME), Mitt Romney (R-UT), and Joe Manchin (D-WV), is now in talks about possible ECA updates, though it’s unclear if enough Republicans would ultimately sign on to reach the 60-vote threshold any bill needs to pass. Because the law governs how Congress counts presidential election results, reforms could address vulnerabilities that former President Donald Trump tried to exploit last January.
These updates, however, wouldn’t bring about the sweeping protections Democrats hoped to institute with the voting rights package that failed this week, and wouldn’t be enough to stop election subversion at the state level. The push to reform the ECA is also indicative of the legislative limits the party faces with the filibuster intact. Because they need GOP support for most bills, Democrats might be able to take some small steps toward their policy goals, but only the ones that Republicans allow.
“American democracy faces multiple threats — the possibility of interference with the electoral count is just one of them,” said Alex Tausanovitch, the director of campaign finance and election reform at the Center for American Progress. “Just reforming the Electoral Count Act would be like only locking your back door. There’s a broader set of precautions we should take, particularly when something as fundamental as the democratic process is at stake.”
Like Democrats’ push to pass new federal voting rights protections, updates to the ECA are a direct response to Trump’s attempts to overturn the 2020 election results, though they only address one aspect of these efforts.
As Congress was certifying election results last January, Trump urged Vice President Mike Pence to throw out certain results, something Pence ultimately declined to do. Modifications of the ECA could make it clear that a vice president is unable to discard election results, and thus unable to overturn an election. In addition, the updated ECA could make it tougher for lawmakers to challenge states’ results, thereby avoiding a situation where a group of lawmakers conspires to nullify valid election results as some Republicans attempted to do in 2021.
Although these reforms are critical and worth pursuing, election law experts say they’re no replacement for measures intended to increase voting access and combat attempts at partisan election interference in different states. Because reforms to the ECA would narrowly apply to Congress’s role in presidential elections, they wouldn’t confront state laws that restrict early voting access and vote-by-mail, and they wouldn’t counter state legislatures’ attempts to exert control over local election administration. Collins has said she hopes a bipartisan elections measure could also help strengthen protections for poll workers and election officials who’ve faced growing threats of violence. The limitations of these possible reforms, though, have not escaped notice from some Democratic lawmakers.
“I support reforming the Electoral Count Act,” said Sen. Raphael Warnock (D-GA) in a floor speech on Wednesday. “That said, reforming the Electoral Count Act will do virtually nothing to address the sweeping voter suppression and election subversion efforts taking place in Georgia, and in states and localities nationwide.”
The Electoral Count Act, briefly explained
The Electoral Count Act, which was first passed in 1887, lays out how Congress counts each state’s electoral votes in a presidential election, and how lawmakers should respond if states send in competing sets of results.
As it works now, Congress receives the presidential election results from each state and has the job of counting and certifying, or finalizing, these results. To do so, Congress gathers the January after the presidential election for a joint session in order to go through each state’s results. As the results are read, lawmakers can contest them as long as one House member and one senator agree to register their objections.
If an objection is made, the House and Senate will then each debate the objection and vote on it: For the results to actually be contested, a majority of members in both bodies need to agree to it. Otherwise the objection is dispensed with and the results are counted as is.
This provision in the law was particularly relevant last year.
In January 2021, House Republicans raised objections about the results in six states, though only their objections toward the Arizona and Pennsylvania results had Senate support. Neither of those objections received a majority of support in either chamber.
In the past, lawmakers have raised objections regarding the Georgia results in Trump’s election in 2016 and the Ohio results in former President George W. Bush’s election in 2004. The objections to the 2020 presidential results, however, were unique in the number of states that were contested, and the number of Republicans who supported the effort. In the end, 147 Republicans maintained their objections to the outcome in Pennsylvania or Arizona.
During the certification process, the vice president also has what’s typically a ceremonial role that’s detailed in the ECA. Their job is to open each state’s electoral results, present them to Congress and preside over the joint session. Once the outcomes in each state are tallied, the vice president will also announce which candidate received a majority of the electoral votes to win the presidency.
In 2021, however, Trump urged Pence to consider overturning the results by rejecting the outcomes in several states. According to Peril, a book by Bob Woodward and Robert Costa, attorney John Eastman, a member of Trump’s legal team, laid out a plan for how Pence could discard the electoral outcomes in seven states and declare Trump the winner. Pence, however, concluded there was no legal basis for him to do so and refused to follow through on the plan. Changing the ECA would further guarantee that a vice president wouldn’t be able to take such actions.
As a Yahoo News report notes, another current shortcoming in the ECA is the leeway it gives states regarding the slates of electors they could send to Congress, potentially giving states the ability to overturn results if their legislatures decide to do so:
At the state level, the ECA gives governors enormous power over the slate of electors sent to the Electoral College. As of now, there is room under the law for a state legislature to try to throw out the popular vote in its state by sending a competing slate of electors to Congress. If the governor signs off on that slate, then the law would dictate that those electors are the ones that are counted.
Matthew Seligman, a fellow at the Center for Private Law at Yale Law School, has said that the ECA could be updated to more plainly state when electors can be chosen.
In addition to pressuring his vice president to disregard the election’s outcome, Trump’s push to contest the 2020 results, coupled with GOP lawmakers’ assertions that there was something amiss about those results, spurred thousands of his supporters to storm the Capitol as the certification process was taking place on January 6, 2021.
How lawmakers plan to change the Electoral Count Act
Talks about ECA reforms are still in their early stages at the moment, though they have picked up support from both sides of the aisle. Senate Minority Leader Mitch McConnell is among those who has signaled an openness to considering them, an indication that there could be sufficient Republican support for a measure to pass the upper chamber.
ECA changes could help close certain loopholes that Trump tried to capitalize on during the vote certification process in 2021, several of which the House Administration Committee pointed to in its recommendations for reforms.
One of these suggestions would be increasing the threshold of lawmakers needed for an objection to be registered. Instead of only requiring one House member and one senator to raise an objection, committee staff recommends increasing this threshold to one-third of the members in the House and the Senate. Additionally, staff suggests that the vice president only have a very limited role in the process — including opening and presenting the electoral counts, but not presiding over the counting as they have in the past.
“There’s a good win there,” Sen. Joe Manchin (D-WV) previously told reporters when asked about potential changes. “I mean, my goodness, that’s what caused the insurrection.”
But there’s a lot the proposed updates wouldn’t accomplish.
Reforms to the ECA wouldn’t address pressure campaigns the former president launched in places like Georgia and Arizona, where he and allies urged election officials to ignore the electoral outcomes. (Trump could face charges for trying to interfere in the Georgia election.)
ECA reforms also wouldn’t combat a new Georgia law that enables the state election board to suspend local election officials, or the initial refusal of two Wayne County, Michigan, election canvassers to certify the region’s results in 2020 (both officials ended up reversing course). And it wouldn’t curb audits by states like Michigan, Pennsylvania, and Wisconsin, which have forced partisan reviews of election results that undercut trust in the outcome.
“One of the concerns is that states are taking steps to change state processes and authorities for certifying elections,” said Professor Rebecca Green, a co-director of the election law program at William and Mary Law School. “Electoral Count Act reforms would not touch those internal state processes, which are the domain of states and state legislatures.”
In addition to the limited role it can play in fighting election subversion, these reforms also offer no new protections for voters in states like Georgia, Texas, and Arizona, which have all recently passed laws intended to restrict access to the ballot by banning things like drive-through voting and shortening the time frame for submitting mail-in ballots.
Changes to the ECA “don’t do anything to block the suppression that’s taking place,” said Cliff Albright, a co-founder of the advocacy group Black Voters Matter. “They don’t block the attacks on drop boxes, on vote-by-mail, the criminalizing of people who give out food and water. They don’t block any of that.”
There’s another potential issue with the ECA reforms currently under discussion as well. Albright notes that the reforms could actually inadvertently enable election subversion if they make it harder for lawmakers to contest state results should state officials submit partisan results that do not match up with the actual outcome.
“Let’s say we have nefarious state officials. If you raise the threshold that you need [for objections], you certainly make it harder to smoke out that kind of nefarious problem with the election officials,” said Hamline University political science professor David Schultz.
Changes to the ECA are indicative of the watered-down policies Democrats will have to consider
Whether any ECA changes actually materialize is an open question. In the past, Republicans have signaled interest in policies, only for talks to falter when there’s been disagreement on key provisions. In the case of a 2020 and 2021 push for police reform, for example, Republicans expressed interest in a bipartisan compromise, but talks collapsed after members of both parties couldn’t overcome their differences on the issue of qualified immunity. The same dynamic has played out on gun control, which has garnered bipartisan support that’s failed to translate to concrete policies.
On the issue of voting rights more specifically, Sen. Lisa Murkowski (R-AK) has said she’d be open to working on a more limited measure that addresses voter protections and has previously voted in favor of advancing the John Lewis Voting Rights Advancement Act. There aren’t yet the 10 necessary Republican votes needed to actually pass a bill on that front yet either.
That means the ECA reform may be all Democrats are able to accomplish on elections in the near term, making it an example of how Democrats have to settle, since conservative members of their caucus have voted to preserve the filibuster. Because of Senate rules, Democrats will have to water down their proposals on everything from immigration reform to the minimum wage in order to have a shot of picking up any Republican support.
For now, the changes to the ECA seem like the most tenable election reform that lawmakers at the federal level may be able to achieve. Because of the narrow majority they have and the existing Senate rules, Democrats will likely need to make similarly drastic concessions on other priorities if they want to get anything done.