Bipartisan senators turn to reforming Electoral Count Act now that voting rights standoff over

Then-President Donald Trump tried to exploit the 19th century law on Jan. 6.

January 20, 2022, 4:32 PM

With voting rights reform now firmly in the rear view mirror, negotiations to reform the Electoral Count Act have ramped up, but it remains far from certain that the talks will bear fruit despite the growing bipartisan interest.

The obscure 19th century law that governs the counting of each state's electoral votes for president, a process then-President Donald Trump and his allies sought to exploit to secure a victory not won at the ballot box, has long been the subject of bipartisan ire.

The law allows one congressman paired with one senator to object to the results submitted by each state, something both parties have done previously, although Trump allies in 2020 attempted to block the decision of far more states than ever before.

The vice president's role in what usually is a perfunctory proceeding -- counting and announcing the votes -- is also extremely unclear, and Trump and his team attempted, in an effort to overturn the election, to exert pressure on then-Vice President Mike Pence to declare some states' slates of electoral votes in question, pressure that led to the Jan. 6 attack on the U.S. Capitol.

Vice President Mike Pence presides over a joint session of Congress to certify the 2020 Electoral College results, Jan. 6, 2021, in Washington, D.C.
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"I've always thought we should just repeal it," Sen. Roy Blunt, R-Mo., a former secretary of state, said Thursday. "If you can't replace it, I'd be just for repealing it. I think it creates more problems than it creates solutions. And so I think there's a lot of interest in doing something about that. And my guess is that the majority of Republican senators would agree with that."

But therein lies the problem for Democrats, unsure if GOP interest in electoral law changes is real after the party's unified, high-profile opposition to federal voting law changes. Republicans are, likewise, suspicious of Democrats whose leader, Chuck Schumer of New York, recently lambasted attempts to reform the ECA as "offensive."

"If you're going to rig the game and say, 'Oh, we'll count the rigged game accurately,' what good is that?" Schumer recently scoffed when asked about budding ECA reform efforts. Branding those efforts "the McConnell plan," since the GOP leader – Mitch McConnell of Kentucky -- has expressed an openness to reforming the law, Schumer added, "It's unacceptably insufficient and even offensive."

Despite the lack of trust among the parties, Sen. Susan Collins, R-Maine, has led bipartisan talks behind closed doors for the past three weeks to try to reform the law, with interest in those negotiations growing "big time" in the wake of the Democrats' failed effort at broader electoral reforms, according to a Senate aide with knowledge of the matter.

"We're going to be working hard over the recess," Collins told reporters. "I'm very encouraged at the amount of interest that there is from both sides of the aisle."

Sen. Mitt Romney speaks to members of the media while departing the Capitol, Feb. 9, 2021.
Bloomberg via Getty Images

For his part, McConnell reiterated his support for possible ECA reform and the Collins talks Thursday, but went a bit further, telling ABC News, "I think it needs fixing, and I wish them well, and I'd be happy to talk a look at whatever they can come up with." Asked for any red lines in those negotiations, the leader said, "I just encourage the discussion, because I think (the ECA) is clearly is flawed. This is directly related to what happened on January 6th, and I think we ought to be able to figure out a bipartisan way to fix it."

Sen. Mitt Romney, R-Utah, an early member of the group, told ABC News, "There are about 10 Republicans and maybe four or five Democrats that are working on it. We exchanged a list of things that we thought ought to be included in an election reform package -- some items related to making sure that election officials were not harassed, others related to how elections are certified, others related to what the role of the Vice President is in the electoral accounting process, how you would deal with an objection to a slate of electors."

The details around how to implement each of these items would be complex, and the negotiation is "just now beginning to talk about which of these we'll find sufficient support for in a bill," said Romney.

Both conservative Democrats, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona -- who refused to support changing the Senate rules to pass their party's sweeping voting rights legislation -- are working with Collins on ECA changes, along with GOP Senators Thom Tillis, Lisa Murkowski, and Roger Wicker, among others. Some senators, like Blunt, Jeanne Shaheen, D-N.H., and Ben Sasse, R-Neb., have shown interest, according to aides involved in the talks, but have yet to commit to being a part of the group.

Sens. Joe Manchin and Susan Collins talk with reporters about voting rights at the Capitol, Jan. 20, 2022.
Tom Williams/CQ-Roll Call via Getty Images

Manchin, speaking with reporters about the talks, said he was particularly focused on violence and threats against poll workers which have ramped up in recent years in particular in the wake of Trump's so-called "big lie" that he won the 2020 election but it was stolen from him by fraud.

"They're scared now, because of the highly charged political atmosphere. We do want to make sure that we can raise this to the level of a federal crime if you accost, if you threaten anyone who works at the polls, you'll be dealt with with the harshest penalties," said Manchin, who is leading the talks for Democrats. "You're not going to fool with the count and our voting people."

The Collins-Manchin group plans to meet by Zoom in the next few days, with an eye toward potentially producing a legislative proposal at the end of next week's recess, according to Romney, though Collins offered a more sober estimate. "I think we don't know how long it's going to take. We've done a lot of research. We've talked to election experts, professors, the election assistance commissioners, all sorts of people to make sure we get this right."

A view of the U.S. Capitol on Jan. 19, 2022 in Washington, D.C.
Drew Angerer/Getty Images

Collins said the scope of her group's work will go beyond just the 150-year old Electoral Count Act, like additional grant funding for states to improve the quality of their voting systems, and that she was encouraged by President Joe Biden's comments expressing a willingness to work with Republicans to get this done.

A parallel effort is happening among a group of senior Democrats, including Sens. Amy Klobuchar and Angus King - - led by Schumer's number two, Dick Durbin of Illinois. Durbin said he planned to talk to Sen. Collins about her efforts to see what might be done together.

"We wouldn't necessarily merge our efforts, no. We just want to see what they are doing and talk it through," Durbin told reporters this week.

In the House, a staff report from the Administration Committee, outlined in a 31-page report potential changes to the law which the group says is "badly in need of reform." Their proposal could provide a foundation for the special committee investigating the Jan. 6 attacks from which to recommend legislative changes, the panel's chair, Rep. Zoe Lofgren, D-Calif., told NPR.

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