Senators Seek Changes to Electoral Count Act to Firm Up Presidential Elections

With Democrats’ broad elections package defeated, lawmakers see opening to make narrower changes

Where Do Voting Reform Efforts Go From Here?

By Eliza Collins, WSJ, January 20-21

WASHINGTON—With Democrats’ sweeping voting-access legislation hitting a dead end, a bipartisan group of senators is turning to possible areas of compromise on narrower but critical parts of elections rules, including changing an 1887 law that governs how Congress deals with presidential election disputes.

Republicans in recent weeks have started talking about making changes to the Electoral Count Act in an effort to stop a repeat of what happened following the 2020 election. Then-President Donald Trump, a Republican, had urged then-Vice President Mike Pence to reject the Electoral College votes from some states, which he declined to do. That same day, the Capitol was overrun by a pro-Trump mob seeking to stop the certification of the election victory of President Biden, a Democrat.

Sen. Susan Collins (R., Maine), who is leading the bipartisan effort, said Thursday she was encouraged by the interest from colleagues from both parties in overhauling the law.

The Electoral Count Act governs how Congress counts and certifies presidential election results. Critics say it allows for members of Congress to dispute election results without legitimate evidence and doesn’t provide the necessary safeguards to make sure the election results are accurate. They say one reform would be to clarify the role of the vice president and eliminate his or her ability to change an outcome.

There are so many ambiguities and a law that is nearly 150 years old, we need to clarify what is the role of the vice president precisely, make it clear that it’s ministerial,” Ms. Collins said.

The bipartisan group has looked into other areas of possible compromise in addition to changes to the Electoral Count Act, including creating protections against violence and threats for poll workers and election officials, and providing grants to improve voting systems, Ms. Collins said.

Sen. Joe Manchin (D., W.Va.) expressed optimism Thursday that a compromise was attainable. Mr. Manchin backed the Democrats’ broader elections push, but along with Sen. Kyrsten Sinema of Arizona broke with the party when it tried to change the Senate rules to get the legislation around a Republican filibuster. The bill was blocked late Wednesday night.

“We’re gonna get a bunch of people together, Democrats and Republicans, and get a good piece of legislation that protects the counting of the votes, the accuracy of the vote and making sure that the person basically that has been deemed a winner—you can bet the house on that one,” he said.

Mr. Manchin said he had spoken to Mr. Biden about the Electoral Count Act and the president was supportive of the effort.

Mr. Biden on Wednesday predicted “we’ll get something done on the electoral reform side of this,” even as he expressed disappointment that the broader package wasn’t advancing. White House press secretary Jen Psaki said Thursday that Mr. Biden is open to talking with lawmakers about the Electoral Count Act.

Democrats had proposed making Election Day a national holiday, requiring states to allow voters to register on the day of an election starting in November 2022, and mandating 15 days of early voting, among other provisions. Republicans said the bill marked federal overreach into matters best left to states.

Ms. Collins had convened a small bipartisan group on Jan. 5 to talk through changes to the Electoral Count Act and other areas of election reform that could draw bipartisan support and reach the required 60 votes to pass the Senate. But the lawmakers didn’t have any subsequent meetings because Democrats were still working to pass their legislation.

With that bill now defeated, aides to more than a dozen bipartisan senators are expected to join a call Thursday on the Electoral Count Act, with a follow-up meeting between senators expected in the coming days, according to a person familiar with the matter.

“I think on our side there’s been a wait-and-see what happens. Alright, now we saw, now let’s get to work,” said Sen. Lisa Murkowski (R., Alaska), one of the members of the bipartisan group. She also listed several areas of possible agreement between the two parties, including better public disclosure of changes to elections, increased protections for voters and election workers, and enhanced security of voting systems.

Sen. Mitt Romney (R., Utah), a member of the group, said lawmakers were exploring questions related to how Congress should handle a contested elector slate, the role of the vice president in the final tally and protecting state election officials from harassment.

“The advantage of this moment is that the vice president is a Democrat. So hopefully Republicans recognize that clarifying the role of the vice president is in our interest, as well as in the other party’s interest,” he said.

President Biden spoke in Atlanta in early January to support changing Senate filibuster rules as he sought passage of federal voting laws that have been repeatedly blocked by Republicans. Photo: Patrick Semansky/Associated Press

Minority Leader Mitch McConnell (R., Ky.) said Thursday that he was open to supporting changes to the Electoral Count Act. “I think it needs fixing, and I wish them well.”

A spokesman for Majority Leader Chuck Schumer (D., N.Y.) didn’t immediately respond to a request for comment. He has previously said change to the Electoral Count Act would be meaningless without other protections for voters.

Democrats said that changing the Electoral Count Act might be their best chance of passing elections-related legislation in a 50-50 Senate, where most legislation requires 60 votes for passage.

“To me, the Electoral Count Act is just not enough,” said Sen. Chris Murphy (D., Conn.). “I don’t know if we’re gonna get Republicans to work on mail-in voting and the elimination of dropboxes. But it may be that we can work on something more than the Electoral Count Act.”

With the broader bill on ice, voting-access advocates’ attention may now turn to fight individual state laws. Several Republican bills to tighten voting rules that failed to pass state legislatures in 2021 are being reintroduced this year, including in Arizona, Georgia and Wisconsin.

“This is the end of the line for this Congress on major federal legislation to protect the right to vote, and federal intervention is what we’ve needed,” said Meagan Hatcher-Mays, director of Democracy Policy for the progressive organization Indivisible.

—Siobhan Hughes contributed to this article.