Several Senate Republicans have indicated that they may be open to a revision of the Electoral Count Act (ECA), a 19th-century measure that laid out many of the United States’ modern electoral practices. While Republicans unanimously oppose wider-reaching election bills, a revision of the ECA is seen by some as a much more moderate and acceptable alternative.
After two days of debate over the John Lewis Voting Rights Act and the Freedom to Vote Act, Democrats tried to bring both bills to a floor vote. Unsurprisingly, both bills failed to pass after Republicans filibustered the legislation unanimously, as they have done to every elections bill Democrats have brought to the floor.
To overcome the objections of half of the U.S. Senate, Democrats then tried to pass a motion to change the filibuster in order to allow the measures to pass by a simple majority. But this maneuver also failed after Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) voted against it with all 50 Republicans.
However, with no signs that Manchin and Sinema will change their minds on the filibuster, and with no indication that any Republicans will support Democrats’ more expansive voting bills, Democrats have only one option left on the table to pass any election reform: a revision of the Electoral Count Act of 1887.
Enacted 10 years after the electoral crisis of the 1876 election, when states sent competing slates of electors to Congress, the ECA laid out basic guidelines for electoral counting procedures moving forward. Effectively, the ECA told states that they would need to deal with electoral disputes on their own.
Congress would only get involved in electoral disputes under limited circumstances. For instance, if a governor certified and sent to Congress competing slates of electors, the ECA gave Congress the power to adjudicate the dispute.
The scheme to revise the law is still in its early phases, and Democrats have been less excited by the idea than they are about more comprehensive election bills. However, an ECA revision would seemingly garner far more Republican support than any of the Democrat-sponsored election bills, which GOP critics say are designed to unfairly benefit Democrats over Republicans.
Thus far, several prominent Republicans have given some indication that they would be onboard with the proposal, though few have solidly committed to the plan.
The effort to reform the ECA has been driven on the Republican side by Sen. Susan Collins (R-Maine), a critical swing vote. Collins has worked with Democrats to move the plan forward, and would almost certainly support an ECA revision if it came to a vote.
Discussing the plan with reporters, Collins said, “I’m very encouraged at the amount of interest that there is on both sides of the aisle,” indicating that other Republicans are equally enthusiastic about the proposal.
Sen. Mitt Romney (R-Utah) is another driving force behind the plan on the GOP side of the aisle.
“The group, about 12 senators, Republicans, and Democrats, that are working on the Electoral Count Act, we’ll continue to work together,” Romney said.
Romney said the Democrats’ proposals would give too much power to the federal government, but indicated that a less-consolidating elections bill would be acceptable to him and other Republicans.
On Jan. 20, Senate Minority Leader Mitch McConnell (R-Ky.) implied that he may support an ECA revision if it came to the floor.
Asked about the effort, McConnell told reporters: “I think [the ECA] needs fixing, and I wish them well in that effort.
“I'd be happy to take a look at whatever they [come up with].
“I encourage the discussion because I think [the current ECA] is flawed,” he said, adding that these flaws are “directly related to what happened on Jan. 6.”
The “Stop the Steal” protest at the Capitol on Jan. 6, 2021, has been a focal point for many of the plan’s proponents.
Amid continuing concerns over election integrity and widespread fraud, President Donald Trump insisted that Congress wait to certify the election results pending further investigation and litigation. Though this was entirely legal under standing law, many proponents of an ECA revision have treated Trump’s request as an extralegal effort to overturn an election.
While details on what an ECA revision would look like are sparse, correcting perceived problems during the aftermath of the 2020 election has been a driving factor behind it.
Sen. Collins, the most outspoken GOP proponent of the plan, told reporters on Jan. 20 that the need for an ECA revision was “amply demonstrated” by the events of Jan. 6.
Another potential GOP vote could come from Sen. Lisa Murkowski (R-Alaska).
During the debate on the Senate floor on Jan. 19, Murkowski made clear that she opposed the Freedom to Vote and John Lewis Acts, and criticized Democrats for their partisanship over election reform. But she also brought up the proposed ECA revision and indicated that she thought Democrats and Republicans could reach a compromise there, suggesting that she might be on board with the proposal.
If an ECA revision is to pass, it will need the support of at least 10 GOP senators and all 50 Democrats to get over the 60-vote filibuster threshold. While the revision has gained traction in recent days, a good sign for proponents of the plan, it’s still several crucial votes short.
This proposed compromise bill is currently still in its infancy. Nevertheless, the proposal has won far more GOP support already than any other Democrat-proposed elections bill.
Still, it remains to be seen whether Democrats will consider a more lean elections bill as acceptable, or if they will push for more wide-reaching revisions to the law.
