After a burst of initial bipartisan interest in a fix for the dangerously complex Electoral Count Act of 1887 — which played so prominent a role in the events of January 6, 2021 — progress in the Senate seems to have slowed down. Negotiations on the subject did (at least so far) survive a flare of hostility from Donald J. Trump, perhaps because his objections were so incoherent (he is still fixated on his claim that Mike Pence could have stolen the 2020 presidential election for him, even though his own attorney’s pitch to Pence argued the ECA was unconstitutional). But now, the word from Politico is that Republicans want to slow-walk the reform effort.
In part that’s because Republicans want to slow-walk everything the Democratic-controlled Congress does. What, after all, is the filibuster tactic they love so much? It’s a walk that slows to a crawl and then stops.
But another factor is that both parties in Congress are trying to get over the angry words uttered during the Democrats’ long and unsuccessful effort to pass voting rights legislation in 2021 and early 2022. Certainly Republicans don’t want to give anyone the impression they favor anything like federally imposed standards for voting and elections, even though they did so for decades before the GOP abandoned its support for the Voting Rights Act of 1965 as we have known it. And some Democrats want to avoid the charge that they dumped voting rights to move on to the Electoral Reform Act too quickly.
An example of the hangover from voting rights is the Republican claim that Democrats are trying to sneak defeated voting rights provisions into a reformed ECA, as Politico notes:
A GOP aide familiar with the talks said that “Democrats keep trying to push the envelope and talk about challenging state election laws in federal courts” by establishing a new formal pathway to bring those suits. The aide said that dynamic could prevent the bill from getting the 60 votes it needs to advance.
There are some election-law reforms that would appear to flow naturally from the current negotiations, such as protecting election workers from violence and ensuring states have the infrastructure to conduct efficient elections that produce clear results. But according to the leading Republican involved in the effort, Maine senator Susan Collins, “There are some Republicans that want only to focus on the Electoral Count Act, period.” That’s not necessarily a clear and simple distinction, either, since some proposed ECA reforms relating to state certification of electors (a big potential problem in 2024 if Trump succeeds in getting control of governors and state election officials in the 2022 midterms) inevitably impinge on state prerogatives.
Perhaps the best news for Democrats on this issue is that their own lead senator is someone with Republican street cred and manifestly infinite patience. That would be Mr. Slow-walk himself, West Virginia’s Joe Manchin, who has worn out his own party with demands related to Joe Biden’s stalled Build Back Better legislation. Manchin is laying down markers for progress on ECA reform, saying he “wants to get what’s known in the Capitol as a ‘framework’ as soon as this week to reform the 135-year-old law.” If that means the two parties will work out their fundamental differences on the scope of the legislation and begin focusing on the details, which may hide many devils, that’s great. At least one Senate Democrat, Maryland’s Ben Cardin, told Politico the Senate should junk the 1887 law and start over by designing a sensible way to confirm the final results of presidential elections.
That may be a bridge too far for this gridlocked Senate and the gridlocked House that will have to go along with any deal on ECA reform. But there’s no time like the present to get the process moving along. Preventing another blow to democracy ought to be a priority.
