Lawmakers discuss changes to Electoral Count Act after January 6

WASHINGTON (The Hill) — Lawmakers are quietly discussing trying to make changes to the formal counting of the Electoral College results, a year after dozens of Republicans, with then-President Trump‘s backing, challenged the outcome of the 2020 election in key states.

Talks of making changes to the Electoral Count Act—an 1887 law that lays out how Congress formally counts the Electoral College vote, as they did on January 6—are still in the early stages. But there are already signs of bipartisan support for the general idea of making reforms, even though lawmakers still need to delve into the details. 

Senate GOP Leader Mitch McConnell (R-Ky.) said that he views the potential for making changes to the law as “worth discussing,” opening the door to potential Republican support as his caucus takes a hard stance against Democrats’ attempt to do voting and other election legislation. “Wholly aside from all the other things they’re discussing, this is something that’s worth discussing,” he said. 

Sen. John Thune (R-S.D.), McConnell’s No. 2, added that “there’s been some expression of interest” from Senate Republicans about making changes and an “acknowledgement that there are some things there that could be fixed.” “There are several things I think you could [change] if you were looking at doing it,” he said, while cautioning that “I don’t think anybody’s come to any conclusions.” 

Across the Capitol, members of the January 6 committee have indicated that they could make recommendations for how to improve the law. Rep. Zoe Lofgren (D-Calif.), a member of the panel and the chairwoman of the House Administration Committee, said this week that she’s trying to draft bipartisan legislation. 

In addition, Sen. Angus King (I-Maine) is drafting legislation to make reforms to the Electoral Count Act, a spokesperson confirmed. A spokesman for Sen. Kyrsten Sinema (D-Ariz.) confirmed that she has also had discussions with her colleagues about the law.

What changes could get enough support to pass both the House and Senate remain far from certain. One idea floated by multiple senators would be to make it clear that a vice president can’t throw out a state's Electoral College results after Trump publicly and privately urged then-Vice President Pence to use his ceremonial role of overseeing Congress’s counting of the Electoral College results to challenge results in key battleground states. 

Trump frustrated GOP senators at the time with his pressure campaign to try to get Pence to throw out the results from key states. Pence, whose role as vice president also makes him president of the Senate, refused, saying that the Constitution ties his hands.

“We need to clarify the role of the vice president and make it clear the vice president cannot overturn the electoral results. If Vice President Pence hadn't been so strong last Jan. 6—or if we had a future vice president who wasn't as strong—we need to make the law clear,” said GOP Sen. Susan Collins (Maine), who convened a call with a bipartisan group to talk about elections including the 1887 law.

“I think the last time, Pence followed precedent,” Thune added, who agreed that the VP role should be clarified and codified. “There’s some question about how many senators it ought to take, or House members it ought to take to object before it triggers a vote, I mean there’s questions around that.” 

Currently, if an objection to a state’s Electoral College results gets the support of one senator and one member of the House of Representatives, that is enough to force Congress to suspend its counting of the results and for both the House and Senate to have to vote on the objection. Lofgren is floating changing that hurdle to needing the support of one-third of both chambers in order to force a vote on an objection. 

Republicans were able to challenge the results in Arizona and Pennsylvania on Jan. 6, 2021, where the proceedings were suspended for hours after a pro-Trump mob breached the Capitol. They had discussed trying to challenge other states, but several GOP senators dropped their support after being forced to evacuate the Senate for hours.

Top Democrats and outside groups are warning that making potential changes to the law can’t be a substitute to the more sweeping election and voting legislation that Democrats want to pass. To pass the larger bills, which don’t have enough GOP support to break a filibuster, Democrats would need to change the Senate’s rules on their own.

Though Senate Majority Leader Charles Schumer (D-N.Y.) has vowed to hold a vote on the issue by January 17, Democrats don’t have the support of all 50 of their members to force through a rules change on their own. Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) haven’t endorsed making changes or trying to do so without GOP support. 

“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,” he said. “This is a distraction. And we're very clear that we got to pass voting rights."

The White House also made it clear that they are not willing to drop their push to pass voting rights legislation in exchange for GOP cooperation on making changes to the Electoral Count Act. “The President has been crystal clear that the pending voting rights legislation, the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, are essential for protecting the constitutional right to vote, the rule of law, and the integrity of our elections against un-American attacks based on the Big Lie. There is no substitute. Period,” the White House said in a statement. 

But Democrats say they are interested in reforms to the 1887 law separate from, and not as a replacement for, ongoing discussions about how to bolster voting rights. “It’s a really important thing to do to clarify any ambiguity that the president and his team were able to exploit last year,” said Sen. Tim Kaine (D-Va.). “It would not be a compromise in the sense of we do that in exchange for not doing voting. It’s not really voting rights.” 

Sen. Ben Cardin (D-Md.) added making changes to the law “would be helpful, but I don’t think it’s the core problem.”

Republicans acknowledge that if there is going to be action on shoring up how Congress formally counts the Electoral College results it’s going to be separate from the ongoing Democratic negotiations over voting rights, and that the Democratic rules change discussions will need to play out first. “It’s got to be independent of what they’re trying to do,” Thune said. “It really would have to be an independent exercise.”