It’s ‘bonkers’ if House, Senate let minor differences derail bill to protect elections, expert says

Rep. Liz Cheney said Tuesday that the passage of an Electoral Count Act reform bill is an important step toward ensuring the peaceful transfer of power in future presidential elections, but that there are limits to how much Congress can do.

“Congress has a very important role to play in terms of legislative proposals like this one, but the character of the people we elect really matters,” Cheney told reporters. “And we have to elect people who aren’t willing to blow through the guard rails for democracy.”

The Electoral Count Act of 1887 was passed in response to the disputed presidential election of 1876 and stipulates how Electoral College votes are counted and then certified by Congress.

Amid Republican attempts to keep then-President Donald Trump in power after he lost the 2020 election, it dawned on many experts that voting rights meant little if election results could be overturned by bad actors after voters had gone to the polls. And so the ECA became the focal point for experts on Congress and election law as they considered how to close loopholes that could be exploited by political saboteurs intent on election subversion.

Near the end of 2021 and into January 2022, Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., spearheaded talks to reform the ECA. Their work was helped by the publication in January of an 87-page report by an academic named Matthew Seligman, who detailed the vulnerabilities of the law and how to best shore them up.

Over the past year, Collins and Manchin have cobbled together a bipartisan group of senators whose support for an ECA bill would ensure its passage by moving it above the 60-vote threshold needed to overcome a filibuster, a tactic used to block any legislation that does not have supermajority support.

Cheney, meanwhile, has been the most prominent leader of the House committee investigating the Jan. 6 Capitol riot. A Wyoming Republican, she lost a GOP primary earlier this summer to a candidate who endorsed Trump’s conspiracy theories about the 2020 election.

The Jan. 6 committee has held several hearings and demonstrated a clear public record: Trump knew on the night of the 2020 election that he had lost, but he forged ahead anyway with a cascade of lies about voter fraud without any evidence for his claims.

But as the committee prepares to hold its final hearings this fall, Cheney and Rep. Zoe Lofgren, D-Calif., have begun to release legislative proposals as well, starting with the ECA bill.

There are a few differences between the House legislation and the Senate bill, and while there is some tension between the two chambers, Seligman told Yahoo News that “it would be bonkers for either side to dig in.”

“If I were a betting man I’d think that the House is going to have to come to the Senate more than the reverse because getting over the filibuster is a political obstacle,” Seligman said. “I think that everybody realizes how important this is.”

And more important, he said, both the House and Senate legislation have the same solutions to the most glaring weakness in current law: There are vagaries that leave space for state officials and members of Congress to meddle with election results.

Seligman’s original proposal was to clarify the role of Congress and limit its powers in certifying election results, and then to make federal courts the ultimate arbiter of disputes. The reliance on federal courts is intended to prevent governors or other state officials from succeeding if they submit illegitimate electors, and to prevent Congress from accepting fake electors.

“It’s important to air the differences” between the House and Senate legislation, Seligman said, “without losing sight of the fact that either of them is a monumental improvement over the status quo.”