Can Electoral Count Act reform get over the finish line?

House Democrats’ speedy action on a reform bill has polarized the issue, but hopefully the imperative of fixing the broken ECA will ultimately prevail.

This week, by a vote of 229-203, the House of Representatives approved legislation reforming the process for certifying and counting presidential electoral votes with only nine Republicans supporting the bill. The bill is significantly different from the bipartisan Senate approach that was introduced in July and has now garnered 10 co-sponsors from each party. The Collins-Manchin Electoral Count Act (ECA) reform legislation will be considered by the Senate Rules Committee on September 27. 

Given the bipartisan and promising nature of the Senate legislation, the House action came as something of a shock, as it was only introduced on Monday and jammed through the House 48 hours later, with no committee consideration, only two hours of floor debate and no amendments.

What is going on? 

Here is my take:

The Senate bill gained widespread praise from most election law experts because it closed the major loopholes in the ECA that were threatened to be exploited by Trump in the aftermath of the 2020 election.  There was one noteworthy dissenter -- Marc Elias -- the founder of Democracy Docket and the leading election lawyer for the Democratic Party.  Elias believes that the Senate draft did not do enough to foreclose the many ways that the MAGA faithful would likely seek to undermine the electoral college process in states that Trump or some other Republican lost. Elias noted that this risk would be especially acute if 2020 election-deniers win bids for secretary of state or governor and gain authority over election procedures. There is no doubt that Elias has the ear of Speaker Pelosi and other leading House Democrats like January 6 Committee members Zoe Lofgren, Jamie Raskin, and Adam Shiff. 

With the Senate bill moving forward, my sense is that the House wanted to lay down its marker first, perhaps with the goal of pressuring Senate Rules Committee Chair Amy Klobuchar to incorporate some of its ideas into her markup proposal or to set parameters for an eventual House-Senate negotiation. If the Senate passed a bill without the House acting, there would have been a great deal of pressure for the House to take up and pass the Senate bill without having any imprint on the final legislation. 

The two bills achieve many of the same core goals, but there are significant differences:

• First, to attract Republicans, the Senate bill styles itself as a low-key technical reform by keeping much of the current 1887 Electoral Count Act in place without trying to remedy every single ambiguity that the antiquated language of the law creates (and there are many).  The House bill shows no hesitancy in wiping out most of the original ECA and using modern language, election law concepts, and congressional procedures to tightly circumscribe the entire process for certifying, transmitting, and then counting electoral college votes.

• Second, the architects of the Senate bill seem to believe that the original ECA provides sufficient means for candidates to go to court to challenge the way state officials have counted or certified electoral votes. Elias does not agree. His concerns are addressed in the House bill, which explicitly allows candidates to go to federal court to force state officials to comply with their obligation to certify electoral votes consistent with the Constitution and federal law. The House bill also clarifies that a governor’s certification of electoral college votes is not considered “conclusive” if it is modified in any way by a court order. 

• The House bill reflects an awareness of the many ways that the Trump cabal was scheming to interrupt the electoral college vote count on January 6 and takes steps to shut those avenues down. This is not surprising given that the House bill’s authors are Lofgren and Cheney, members of the January 6 committee. For example, the House bill includes reforms to preclude members of Congress from delaying the electoral college vote counting by filing multiple duplicative objections or recessing one or both chambers of Congress. The Senate bill is mainly silent on these issues.

• Finally, the Senate bill is more deferential to the Republican-supported concept that the primary regulator of elections are states and state courts. The House bill, however, unabashedly opens new avenues for federal court intervention.

So, with these very different approaches between the House and Senate, and the midterms rapidly approaching, can ECA reform get enacted into law?

While the House bill is clearly tighter and more effective in foreclosing MAGA-based election shenanigans, House Democrats also went out of their way to polarize this issue. First, the bill’s preface directly links ECA reform to the attacks of January 6 and the “Stop the Steal” movement–this is essentially a declaration of war against the MAGA-aligned House Republicans. Making Liz Cheney a primary sponsor of the bill was also a direct and intentional thorn in the eye for the House Republican caucus. And then the Speaker used every exception to House rules available to jam the legislation through with hardly any debate or opportunity for minority input. By making opposition to ECA reform a MAGA litmus test and a unifying cause for Republicans, the House action did no favors for the long-term prospects of ECA reform becoming law.

My guess though is that the bipartisan Senate group will proceed undaunted. Perhaps Senator Klobuchar will be able to incorporate some of the House’s useful concepts into her bill without upsetting the bipartisan consensus. If the Senate can overcome a Republican filibuster and pass legislation prior to the midterm election, the next step will be contingent on the result of the elections. If Democrats lose the House, the Speaker will probably determine it is better to pass the Senate bill than nothing at all. If somehow Democrats defy the current odds and hold on to the House, it has more leverage in possible negotiations in the Senate. 

I will keep you posted.