Will Congress Reform the Electoral Count Act?

Today on TAP: And would that make a difference?

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Late last year, after voting rights legislation was blocked, a bipartisan group whose leaders included Sens. Joe Manchin and Susan Collins began talking about reform of the Electoral Count Act.

That’s the flawed law passed in 1887, following the corrupt bargain of 1877 that made Rutherford B. Hayes president, after three states submitted competing slates of electors.

Unfortunately, the 1887 ECA confuses more than it clarifies, and seems to leave a corrupt vice president room to manipulate the results. When the bipartisan group first raised the idea, strongly endorsed by The Wall Street Journal, progressives smelled a rat: The group was proposing to fix only one small part of all that was broken.

Rewriting the ECA to make clear that the vice president’s role in certifying the Electoral College results is just a formality would prevent some venal successor to Mike Pence from fiddling the outcome. But it would do nothing to remedy voter suppression, intimidation, or capture of local election officials, or even efforts by state governors to alter results after the fact.

Lately, however, the bipartisan process has taken on a life of its own. There are now several working groups, and they include preventing state-level sabotage of results and protection of election officials. Meanwhile, on February 1, Sens. King, Klobuchar, and Durbin released their own discussion draft of ECA reform. Their version would make it almost impossible for states to overturn results after the fact.

So ECA reform may conceivably grow into something worth having. There has been a spate of bipartisan legislative success lately, but nothing as consequential as saving democracy. It’s also the case that Republican Sen. Mitch McConnell has come further out of the closet as an anti-Trumper, and McConnell may allow a bipartisan bill to come to a vote.

This proposed law, which affects 2024 and not 2022, could be modest progress, but no substitute for the voting rights legislation that we need this year.

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