Happy Friday. Our fearless leader Haley Byrd Wilt left us unsupervised (always a mistake) but due to editorial oversight elsewhere, we were unable to get away with sending readers a 5,000 word treatise on where to find the best coffee on the Hill. (Harvest’s order is flat white, while Ryan is a black coffee guy, so there was plenty to be said.) But don’t worry, Haley will be back at the helm next week. And now for the news.
Democrats Now Willing to Work with Republicans on Overhauling the ECA
With Democrats’ attempts to push through a federal overhaul of election and voting legislation effectively perishing on the Senate floor last month, a group of lawmakers has now turned to the possibility of passing a narrower subset of election reforms by tweaking the Electoral Count Act to prevent another attempt at overturning the results of a presidential election.
ECA reform has one big advantage: a number of Republicans have already signaled willingness to cross the aisle on a compromise.
Reform efforts gained more urgency—but perhaps became more complicated for the GOP—when earlier this week former President Donald Trump said the quiet part out loud about his role in the attempt last year to overturn the 2020 presidential election results.
Trump argued in a statement Sunday—since deleted from his website—that the effort to reform the Electoral Count Act of 1887 shows that former Vice President Mike Pence “could have overturned the election.” He continued: “What they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away.”
The Electoral Count Act is ambiguous to say the least—David covered the confusing ins and outs of the text here—and now a group of 16 senators (nine Republicans and seven Democrats) is working to clarify the language.
On the latest episode of The Dispatch Podcast, Republican Sen. Rob Portman of Ohio—who is in the group of 16—said that because of the way the Electoral Count Act of 1887 is written, he thinks Trump might have a point.
“He might be right,” Portman said. “I think the statute is really confusing and it’s ancient.”
Republican Whip Sen. John Thune said Trump’s recent statements may “add additional arguments in favor of trying to fix this and slam the door shut on this once and for all.”
Sen. Lindsey Graham told reporters Thursday that, “I really have no doubt that the vice president has zero authority to decertify the lawfully cast ballots.”
“The former president doesn’t think so,” NBCNews’ Leigh Ann Caldwell noted.
“Well, I think he’s wrong,” Graham said. “So there’s no way in my view that this is a problem. … But if there’s a need to clarify, count me in, but I see no need.”
Sen. Dan Sullivan isn’t part of the bipartisan working group, but the Alaska Republican told The Dispatch he believes many senators see the ambiguities in the law. “Right now it’s something that a number of senators on both sides of the aisle think that that could be an area that needs to be refined and clarified,” he said.
Before the latest recess, Democrats resisted the idea of reforming the ECA without also pushing through a larger package addressing a host of other election reform and voting rights issues. At the beginning of the month—after Senate Minority Leader Mitch McConnell said reforming the ECA was a good idea—Senate Majority Leader Chuck Schumer called the idea “unacceptably insufficient and even offensive” in the grand scheme of election reform.
But Schumer seems to have changed his tune post-recess, as the hopes for a larger package dwindled, Politico reported last week.
The White House, too, is in favor of reforming the Electoral Count Act as long as it does not “replace” other election reforms.
“We’ve been open to and a part of conversations about the Electoral Count Act,” White House press secretary Jen Psaki said in Monday’s press briefing. “We’ve never been opposed to it. We just don’t want it to be a replacement [for a larger package].”
But some Democratic lawmakers remain skeptical that ECA reform alone goes far enough. “What my concern is that the ECA is not a replacement for the work that we’ve got to do,” Sen. Raphael Warnock, a Georgia Democrat, told The Dispatch Thursday. “It won’t address the issue that we’re seeing on the ground in Georgia.”
Separate from the bipartisan group of senators working to reform the ECA and other election law, three senators—Angus King, Amy Klobuchar, and Dick Durbin—on Tuesday released a “discussion draft” of a bill to modernize the Electoral Count Act. Klobuchar and Durbin are both Democrats, while King is an independent who caucuses with Democrats.
The trio said their bill, the Electoral Count Modernization ACT (ECMA), “serves as a foundational outline for key reforms that address the shortcomings of the 1887 law.”
We looked at the draft and it does a great deal to help clarify the roles of state legislatures, the electors, Congress, and vice president.
In his infamous 2021 memo, Trump lawyer John Eastman outlined a broad role for Pence during the counting of the Electoral College votes. He argued that the ECA’s provisions could be used to spark challenges to a state’s results and thus empower the vice president or Congress to delay the certification or even overturn the results.
The ECMA would clarify that the vice president has no actual power during the counting. Instead, the president pro tempore (typically the most senior member of the majority party) would preside over the joint session of Congress. If the president pro tempore were a candidate for president or vice president, the role would fall to the next most senior member of the majority party.
The bill would give the vice president one job: opening the envelopes that the ballots come in.
The ECMA also further defines the role of Congress while Electoral College votes are counted. On top of severely limiting the reasons a member of Congress could object to a slate of electors, the bill would require one-third of members of each house of Congress to object in order to debate the objection. Currently, it only takes one member of the House and one member of the Senate for Congress to consider an objection. The bill would also raise the vote threshold to three-fifths of Congress to sustain an objection, which would trigger both chambers breaking away from the joint session to debate the objection separately.
The draft also addresses the roles of state legislatures and governors in certification. The bill actually gives states 12 more days to appoint electors—the deadline in the bill is December 20—so states have more time to conduct recounts if needed. Furthermore, the bill clarifies that the only legitimate slates of electors are those appointed according to the laws of each state. This would rule out the possibility of multiple slates of electors being sent to Congress, which is the scenario Eastman laid out in his memo.
In response to a question from The Dispatch Thursday, Klobuchar, one of the draft’s authors, said a number of lawmakers “have not been familiar with these issues, so we felt it was important to provide them with a draft for starting discussion.” When another reporter asked about the timeline, Klobuchar said that while the bipartisan group is still debating, “we are ready to go.”
Sen. Thom Tillis in a hallway chat Thursday told The Dispatch that the bipartisan group, meanwhile, had not yet settled on concrete proposals: “We’ve had a series of productive discussions. We’re gonna have another one today. We’re taking a look at the draft document that Chair Klobuchar and Ranking Member [Sen. Roy Blunt] put forth,” the North Carolina Republican said. “People are asking about specific provisions—what we’re really trying to do right now is just create a kind of priorities list for every member and then figure out where we have common ground.” Chatter indicated the group could have a draft finished by the end of the week but “that’s not gonna happen,” he said.
The Senate wasn’t in session on Friday. And Sen. John Cornyn told The Dispatch Thursday that, “Sen. Collins and others are having that discussion but it hasn’t been shared with the broader conference and caucuses, much less gotten a commitment for floor time out of Sen. Schumer.”
Both Schumer and McConnell on Thursday ignored The Dispatch’s questions on the subject.
On whether or not Congress will reach an agreement on how to reform the age-old law, Portman told The Dispatch he remained optimistic, “I think it’s likely we can get it done. …It’s just a question of cleaning up a confusing, ambiguous statute and making it clear that an individual, whether it’s Kamala Harris or Mike Pence, would not have the ability to overturn the results of an election.”
Presented Without Comment
Of Note
GOP Declares Jan. 6 Attack ‘Legitimate Political Discourse’ (You can read the RNC resolution for yourself here.)
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