Dems are going to blow it on reforming the Electoral Count Act

Dems are going to blow it on reforming the Electoral Count Act

I can’t believe these idiots really might choke on passing the single most urgent and obvious election reform measure of the 2020 nightmare. One so plainly necessary that even Republicans (well, some Republicans) are willing to work with them on it.

Read yesterday’s post for background on the Electoral Count Act of 1887 if you missed it. Trump tried to exploit the ambiguity of that statute to convince Mike Pence that he had the power to block electoral votes from being certified. He didn’t, but the ECA is so poorly drafted that the argument wasn’t as manifestly absurd as it should have been. The obvious thing to do now is to revisit the law and clarify that the vice president has no power over certification on January 6. And while Congress is at it, they could revise the rules for objecting to certifying a particular state’s electoral votes. Instead of requiring just one member of the House and Senate to object, how about one-third or one-half of each chamber? That would prevent opportunistic populists on both sides from using the certification process to gum up the works in order to pander to their base.

No thanks, says Chuck Schumer. In fact, he’s offended that Republicans are interested in reforming the law. Why? Because he thinks it’s a ploy to weaken Democrats’ chances of passing a federal voting rights bill, legislation which the party has been pursuing since it took power a year ago. If we give the GOP half a loaf by reforming the ECA, says Schumer, it’ll kill any appetite among Manchin and Sinema for nuking the filibuster to pass a voting rights bill.

So maybe they’d be better off with no loaf at all?

Schumer’s tactical argument isn’t crazy in the abstract. Countering an ambitious bill with a less aggressive alternative to lure centrists away is an age-old legislative tactic. In fact, Dan McLaughlin floated the idea of the GOP introducing its own version of an ECA reform bill yesterday as a way to steer Manchin and Sinema away from the voting-rights packages. Doing so would kill two birds with one stone, he argued, not only tanking the prospects for voting rights but proving to the two Dem moderates that the GOP is willing to compromise on center election reforms. They’re not mindlessly obstructionist about this so there’s no reason to punish them by changing or eliminating the filibuster.

Support for a standalone ECA bill from McConnell and Thune would be a win-win: If Democrats join them, they can enact good policy, outflank Schumer’s strategy of painting them as anti-democratic obstructionists, and kneecap the arguments for tearing down the filibuster. If Democrats refuse, Republicans can deflect the blame to the other side of the aisle for not actually wanting to address the signal vulnerability in our system.

It’s an open question how many Republicans a Republican-drafted ECA bill would attract. Any senator beholden to Trump in any way will quaver at the consequences of making it harder for him to overturn the 2024 election in case he loses that one too. But there might be 10, and 10 is all Schumer and the Dems would need to get something through.

Assuming they want to. Which, at the moment, they don’t.

“That makes no sense. If you’re going to rig the game, and then say oh, we’ll count the rigged game accurately. What good is that?” Schumer said, asked about making changes to the Electoral Count Act instead of doing voting rights.

Sen. Raphael Warnock (D-Ga.), who has been involved in the voting rights talks, echoed that, saying, “I find it ironic that some of the very people who participated aided and abetted the effort to not certify the electoral account a few months ago, and now talking to us about an electoral count.”

“So this is a distraction. And we’re very clear that we got to pass voting rights,” he added.

Marc Elias, the Democrats’ election super-lawyer, is also disdainful of focusing on the ECA instead of voting rights:

Even the VP is anti-ECA reform:

Dems don’t want a Republican ECA push to tank their chances at voting reform. It’s perfectly logical…

…except for the fact that they have zero chance of passing voting reform regardless. Manchin and Sinema have been as clear as two human beings can be that they’re not going to tweak the filibuster to allow a simple majority to pass voting-rights legislation. Every day that Schumer and his team spend pounding the table about it is a day wasted that could have been used to work on bipartisan reform of the ECA. It’s pure theater aimed at showing progressives that they fought the good fight, doing everything they could to convince their centrists to change the rules in the name of expanding voting before eventually failing. And it’s unconscionable to be wasting time this way with the GOP less than a year away from taking power in the House.

Once McCarthy and the new House Republican majority take power, any chance of reforming the ECA will be dead. The House GOP, a wholly owned subsidiary of Trump Inc., wouldn’t dare take up that legislation. By obsessing about a voting-rights bill instead of the Electoral Count Act, Schumer’s trying to revive a corpse while a flatlining patient is dying on the table.

As for his substantive objection in the excerpt above, that tying Congress’s hands by reforming the ECA might backfire, it’s not as cynical as it sounds. I explained in yesterday’s post why America really does need to worry about state officials trying to overturn the results of their elections. If that were to happen in 2024, after a new ECA passes limiting Congress’s ability to challenge an overturned state election, the new law ironically might leave the feds with little recourse except to accept those fraudulent results. Still, that’s less an argument for refusing to overhaul the ECA than for doing whatever Congress can do to anticipate that possibility in the draft of the new bill. It could provide greater leeway for the national legislature to intervene in cases where a state sends two slates of electors. And if all else fails, the Supreme Court will be standing by, hopefully prepared to thwart any effort to deny electoral votes to the rightful winner of a state election.

Realistically, though, if we reach the point where state legislatures are overturning the results of their own elections to try to award Trump the presidency, the country is already lost. Having Congress amplify the chaos by moving to un-overturn those state results won’t pacify angry and confused voters, it’ll likely further inflame them by signaling that the outcome of the election is an arbitrary power struggle between federal and state legislative bodies. The Court will be the institution of last legitimate resort. So do what you can to solve the ECA mess at the federal level and hope that state officials aren’t as corrupt as Trump hopes they’ll be in 2024.

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