Congress considers how to modify the Electoral Count Act of 1887 after voting rights stalled

A bipartisan group of senators is exploring legislation to overhaul how Congress counts Electoral College votes, but backers of stalled voting rights legislation are lukewarm on the effort as a substitute.

The Electoral Count Act is an obscure law that has come under recent scrutiny, a year after the Jan. 6 attack on the U.S. Capitol by supporters of former President Donald Trump.

Trump tried to pressure former Vice President Mike Pence to block the certification of the 2020 presidential election results in an attempt to overturn the election — leading to concern that the certification process needs to be clarified.

The push to pass some type of election reform comes after the Senate on Jan. 19 failed to advance federal voting rights legislation, as a counter to Republican-led states that have moved to pass restrictive voting laws in response to claims of fraud by Trump.

Two Democrats — Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona — joined all 50 Republicans in blocking a rules change that would have allowed voting rights legislation to pass with a simple majority vote rather than a 60-vote threshold.

With action on voting rights now delayed, some senators have moved to reform the Electoral Count Act.

But Senate Majority Leader Chuck Schumer and many other Democrats have argued that a revamp of the Electoral Count Act is not a replacement for protective voting rights legislation.

“If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” Schumer said on MSNBC. “It’s unacceptably insufficient and even offensive.”

White House press secretary Jen Psaki told reporters January 20 that while the administration supports changes in the act, such changes would not be a substitute for voting rights legislation, “which some, I think, were attempting to project.”

“The Electoral Count Act does something entirely different,” she said. “So, I think our point is, it’s not a replacement for it. But, certainly, the president is open to engaging with, talking with — as we are — even though it’s not a substitute.”

The 19th-century law allows a congressional representative paired with a senator to object to a state’s electoral votes, which Republicans did.

But the vice president’s role is not necessarily clear, which is why Trump tried to pressure Pence into not certifying the election — sending a mob of pro-Trump supporters to storm the Capitol. Trump was later impeached by the House for a second time for his role in the insurrection.

However, Senator Susan Collins, a Maine Republican who voted with other Republicans in blocking the filibuster rules change, is leading bipartisan talks on revisions in the act and said senators will continue to work on it over the recess.

“I’m very encouraged by the fact that so many of our colleagues, on both sides of the aisle, have indicated interest in making sure that votes are properly counted and certified,” she said, according to Capitol Hill pool reports.

Collins, who on January 19 also joined Senate Republicans in a separate vote blocking the advancement of voting rights legislation, said she also wants the law to address the violence and threats that poll workers are facing.

TIME magazine reported that another Maine senator, independent Angus King, has been working also for months on a plan to fix loopholes in the certification process. King voted with Democrats on the filibuster rules change and on advancing voting rights legislation.

Manchin said he’s been in talks with Collins about revising the act for a while.

“We just think it’s such a needed thing to secure our elections,” he said, according to Capitol Hill pool reports.

He expressed his support for updating the act on the Senate floor recently.

“We can fix that,” he said. “We’ll never have to witness another January 6. It was such an absolutely deplorable stain on this great country of ours.”

Others say voting access and rights are more important.

Senator Raphael Warnock said while he supports efforts to amend the act, it was more imperative that federal voting rights legislation is passed.

“Reforming the Electoral Count Act will do virtually nothing to address the sweeping voter suppression and election subversion efforts taking place in Georgia and in states and localities nationwide,” the Georgia Democrat said on the Senate floor. “It doesn’t matter if your votes are properly counted if you cannot cast your vote in the first place.”

Top Republicans, though, like Senate Minority Leader Mitch McConnell have said that they believe the act needs fixing.

“It clearly is flawed, which is directly related to what happened on January 6,” said McConnell, a Kentucky Republican, according to Capitol Hill pool reports.

House Minority Leader Kevin McCarthy, a California Republican, also has said he was open to potential reform, POLITICO reported.

Senator Chuck Grassley, an Iowa Republican, also said that he is supportive of revising the 1887 election law.

“It wasn’t very well written, or we wouldn’t be having the problems we have now,” he said, according to Capitol Hill pool reports.

Senator Tim Kaine, a Virginia Democrat, said in early January that he feels revision of the Electoral Count Act could be part of a larger voting rights package, but that changes in the act alone would not be sufficient.

“It doesn’t deal with the strategies that states are putting in palace to disenfranchise voters, purge them from the rolls, make it hard for them to vote,” he said.