Donald Trump’s latest political target is the bipartisan effort trying to reform the law dictating how Congress counts electoral votes in presidential elections and the vice president’s role in certification. But for now, the former president’s criticisms aren’t interfering with the ongoing work of a bipartisan group of senators to clarify the Electoral Count Act.
While it’s still in the early stages, members of the group say they’re “moving aggressively” on trying to clarify the 1887 law, which they believe needs a major update after the Jan. 6 Capitol attack. And for many interested in an overhaul, they view Trump’s recent statements on the act as all the more reason to pursue such legislation and prevent a repeat scenario in 2024.
“The statements that President Trump put out on the Electoral Count Act only underscores the need for us to remove any ambiguity that exists in the act, which is poorly drafted and has not been revised since it was passed in 1887,” GOP Sen. Susan Collins of Maine, who is leading the bipartisan group, told reporters at the Capitol after the meeting on Monday evening.
Support to amend the Electoral Count Act has grown over the past few weeks, especially as Democrats’ voting rights legislation hit another wall of Republican opposition and internal resistance to changing the Senate’s filibuster rules to move it forward. And reforming the act has gotten more recent traction compared to Democrats’ stalled Build Back Better economic agenda, which is largely starting from scratch and currently not in formal negotiations.
Still, it’s unclear how quickly the electoral legislation will come together: The group still needs to find agreement and formulate legislative text, get approval from House and Senate leaders and, most importantly, reach the 60 votes needed to advance legislation in the upper chamber. If all 50 Democrats got behind the bill, 10 Republicans would need to join to circumvent a filibuster.
On top of that, Congress is trying to more urgently pass an appropriations bill to fund the government before the Feb. 18 deadline. Sen. Lisa Murkowski said the members are working quickly to produce a compromise bill, but the Alaska Republican acknowledged the slow pace of the upper chamber for any legislation.
Senate Majority Leader Chuck Schumer of New York and Senate Minority Leader Mitch McConnell of Kentucky are letting their respective rank-and-file members take the reins on striking a compromise. They’re open to the reform efforts but aren’t giving definitive positions yet.
McConnell reiterated Tuesday that he believes the law is “flawed” and needs to be reformed, but “I don’t have any particular view beyond that.”
Both Schumer and House Speaker Nancy Pelosi of California are open to reforming the act as well but don’t want the Electoral Count Act to be a replacement for their stalled voting rights bill.
“Just doing ECA is not sufficient. It may be necessary but not sufficient. And ECA deals with the situation in 2024. A lot of these things deal with 2022 and are more urgent and immediate,” Schumer said Tuesday, referring to provisions like protecting poll workers from intimidation.
As the effort gained more steam, Trump, who remains the GOP’s standard-bearer, started making statements about it from the sidelines, continuing to focus on unsubstantiated claims about rampant voting irregularities in the 2020 election and the process in Congress for certifying presidential wins. He also said at a Texas rally over the weekend he’d consider pardons for Jan. 6 rioters if he ran again and won in 2024.
Starting Sunday and again on Tuesday, Trump offered his own interpretation of the Electoral Count Act and the role of the vice president in overseeing the Electoral College certification. He questioned why Democrats and Republicans – specifically Collins – are working on legislation that won’t allow vice presidents to change results when all along they argued that vice presidents don’t have that authority.
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“Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away,” Trump said on Sunday. “Unfortunately, he didn’t exercise that power, he could have overturned the Election!”
Trump’s follow-up statement on Tuesday didn’t explicitly claim that Pence could have overturned the election, instead suggesting that a vice president could have “sent the votes back to various legislators for reassessment after so much fraud and irregularities were found.” He also said the Jan. 6 select committee should investigate why Pence didn’t reject the results and send them back to the states.
Because of claims like the ones from Trump, Congress wants to ensure that the results of a fair presidential election cannot be subjected to arbitrary changes or partisan whims.
The 16-member bipartisan group is divided into subgroups working on various components of the bill. In addition to better laying out the role of the vice president in election certification, lawmakers are focused on shoring up protections for poll workers against threats.
Democrats, including Senate Majority Whip Dick Durbin of Illinois, on Tuesday separately released a discussion draft with measures they’re eyeing: updating how states appoint electors and clarifying that the vice president doesn’t have a role in counting electoral votes with the exception of opening electoral vote ballots since that’s in the Constitution.
The biggest proposed changes focus on the process to object to states’ electoral votes and electors, significantly limiting the scope and ability to do so. To debate and vote on an objection, it would now take one-third of members instead of only one. And to sustain an objection, Democrats propose raising the threshold to three-fifths of members.
While members feel increasingly optimistic about the bipartisan effort, Democrats are hoping Republicans won’t change their minds because of Trump’s criticism of the Electoral Count Act.
Trump still holds a lot of influence over the Republican Party, raising fears that he could hurt the chances of getting reforms through in a bipartisan way and especially with enough GOP support to get to 60 votes in the Senate. Durbin believes the former president might have less sway among his party, pointing to a few polls showing the unpopularity of his claims about the 2020 election that are either unsubstantiated or debunked.
“Donald Trump’s comments only add weight … to the reform movement,” Democratic Sen. Richard Blumenthal of Connecticut told reporters. “I really hope that my Republican colleagues will see that some things are sacrosanct and above the Trump cult.”
