John Thune: Senate Republicans might work with Dems to reform the Electoral Count Act

(AP Photo/J. Scott Applewhite, File)

By “Senate Republicans,” I assume he means a group of 10 mavericks who have either already broken irretrievably with Trump or are retiring this year. There might be 10 between those two groups to help Schumer beat a filibuster and get something passed.

But it’s unthinkable that a majority of Republicans would agree to work with Democrats on this even though it’s the bare minimum Congress should do to avert another January 6. No GOP senator with any future in the party would be caught dead supporting legislation that would make it harder for Trump to overturn the next election if he loses.

John Thune isn’t just the number two Republican in the Senate, he’s a member of one group I mentioned above and may soon be a member of the other. Trump hates him because Thune refused to support the “stop the steal” effort. The prospect of a serious primary challenge resulting from that disloyalty may end up leading Thune to retire, with an announcement expected any day now. If he decides not to run again, he’ll lose any electoral incentive to oppose election reform. Which means, ironically, Trump’s vendetta against him over the 2020 election could end up producing a statute that hobbles his chances to reverse the results in 2024.

While broader federal voting rights legislation remains mired in the Senate as long as the 60-vote filibuster rule applies, Senate Minority Whip John Thune (R-S.D.) told Axios there’s “some interest” among Senate Republicans in reforming the Electoral Count Act of 1887…

“What the Democrats are trying to do [with voting rights] is have a government take over state regulation administration of elections, which is not something we’re for,” Thune told Axios as he rode in a Senate elevator.

“But with the Electoral Count Act, as we saw last time around, there are some things there that, I think, could be corrected.”

The ECA is the law that governs how Congress tallies the electoral votes and certifies a winner on January 6. Its language is infamously obtuse, which gave Trump and lawyers like John Eastman an opening last year to argue that Mike Pence had the power to reject the electoral votes from certain states and either declare Trump the winner or refer the matter to the House. Last summer I wrote that it’s legal, political, and civic malpractice by Congress that they haven’t already moved to overhaul the law after the current version nearly enabled a soft coup. Instead Democrats have obsessed over voting-reform bills that will never pass so long as the filibuster exists and in so doing have wasted much of the little time they have left to do something about the ECA. Simply put:

According to Axios, some Dems are so deluded about the prospects for voting reform that they oppose taking up the ECA for fear that overhauling that bill would sate the Senate’s appetite for doing more. Better that nothing pass than just ECA reform!

Frankly, if voting reform did pass, it might do them more harm than good. “Democrats in Washington should see that using one of the narrowest congressional majorities in American history to nationalize election rules in ways opposed by every Republican official — even if it’s well intentioned — would undermine public confidence in elections,” Yuval Levin pointed out recently. Even so, with Build Back Better suddenly in limbo, Dems are finally planning to take a shot at voting reform this month, just to show their base that they’re prioritizing what progressives want. It’ll fail unless Joe Manchin and Kyrsten Sinema have an eleventh-hour change of heart on requiring 60 votes, but once it does Dems can finally turn their attention to the ECA. Are there 10 Republican votes for reforming that statute?

Maybe. “It obviously has some flaws. And it is worth, I think, discussing,” Mitch McConnell said of the statute when asked about it today. If we assume that all Republicans who voted to convict Trump last February will support rewriting the ECA, that gives us seven votes off the bat. Three more Republicans voted to acquit Trump but are retiring next year and have no reason to oppose ECA reform now: Roy Blunt, Rob Portman, and Richard Shelby. Thune himself might soon be a fourth. Even McConnell might be open to supporting a bill given the chasm between him and Trump. He voted for the bipartisan infrastructure bill over fierce objections from Trump and MAGA, remember.

That’s 12 Republicans. Axios reports that Susan Collins, one of the seven who voted to convict, sounds iffy on reforming the ECA. (“It seems to me we have a good system for the Electoral College to act and one of the important moments of January 6 was that we returned and finished our work under that law.”) But Dems don’t need her if they can get everyone else I’ve mentioned. Can they?

As for what ECA reform would look like, all arguments in favor focus on two parts of the law. One, obviously, would be to clarify that the vice president has no power to refuse to accept electoral votes certified by Congress. He/she is purely a rubber stamp. The other is changing the threshold for objecting to a state’s electoral votes. Right now all it takes is one member of the House and one member of the Senate to object and force the entire chamber to consider the matter. The law could be changed to require majorities of both chambers to object before the objection can be heard. A bipartisan group of election lawyers offered other suggestions for a new ECA in an op-ed today:

Whenever there is just one submission of electoral votes from a state — in other words, no competing slates of electors — Congress should disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed. As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state’s electoral votes.

In a situation in which Congress receives conflicting submissions of electoral votes from different institutions of state government — something that has not occurred since 1876 and that we hope remains rare — Congress should incentivize states to identify in advance which institution is entitled to speak for its voters. If states do this, then Congress only has to count the electoral votes sent from the designated part of the state’s government.

If a state has failed to make clear which part of its government is authoritative in determining the popular vote, Congress could set a default rule (awarding power to the governor or state supreme court, for example).

Therein lies the problem with ECA reform. Even if Congress rewrites the statute and makes the January 6 certification process foolproof at the federal level, unassailable by scheming authoritarians, they still have the not so minor problem of fraud being carried out at the state level. I explained yesterday that the possibility of Republican legislatures in swing states overturning Democratic victories in their states isn’t as unthinkable as McConnell seems to believe. If the new ECA requires Congress to accept whatever a state ends up doing in awarding its electors, no matter how nefarious, then it’ll end up leaving Congress powerless to prevent state-level fraud.

I don’t think having Harris or any other VP “playing chicken” with dubious state legislatures over election results is in the country’s highest interest. The less power Congress has to inject politics into vote-counting, the better. But Prokop’s right that reforming the ECA doesn’t solve the problem of state legislatures injecting politics into vote-counting. As Chuck Schumer put it, tartly, “The Electoral Count Act [reform] says you can rig the elections anyway you want and then we’ll count it accurately.” There’s only so much one can do to legislate the odds of a coup attempt out of existence.