After Sweeping Voting-Rights Reform Fails, Senators Shift Focus to Arcane Law That Emboldened Jan. 6 Rioters

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The Capitol in Washington on Jan. 19, 2022. Credit - Stefani Reynolds—AFP/Getty Images

Late Wednesday night, Democratic Senators suffered a stinging defeat when their months-long effort to pass sweeping voting-rights reform was torpedoed by the entire Republican caucus—with help from two of their own: Democratic Sens. Joe Manchin and Kyrsten Sinema.

Democrats had hoped to pass two bills: the John Lewis Voting Rights Advancement Act, which would have restored and reinforced parts of the landmark Voting Rights Act of 1965, and the Freedom to Vote Act, which would have expanded voting access by making Election Day a holiday, required early voting periods of at least 15 days and made it more difficult for states to remove eligible voters from voter rolls, among other measures.

The floor vote was contentious and emotional. “You’re either a racist or a hypocrite. Really, really? Is that where we are?” Republican Sen. Lisa Murkowski of Alaska said of Democrats’ arguments that not supporting these reforms evoked the spirit of late Alabama Governor George Wallace, an infamous segregationist. (Though Manchin of West Virginia and Sinema of Arizona said they supported the merits of the bills, they both voted against changing Senate rules to allow them to pass by a simple majority.)

But by the next morning, Senators from both parties had already begun ramping up conversations on how they could work together to enact a narrower piece of election reform: fixing a 135-year-old law called the Electoral Count Act (ECA) that Donald Trump allies seized on in their attempts to challenge the election certification processes and storm the U.S. Capitol building last January.

The ECA reform effort is being led by Maine Senators Angus King, an Independent, and Susan Collins, a Republican. King has been working on drafting legislation to improve the ECA for about nine months, according to one of his aides. He began more outreach on the plan after the two larger bills failed, and spoke with South Dakota Republican Sen. Mike Rounds about the prospect of fixing the ECA early Thursday, the King team tells TIME.

Separately, Collins has been organizing ECA discussions with Senators from both parties in recent weeks. Collins said Thursday that a group of six Democrats will meet virtually with Republicans in the next several days to see if they can reach a deal. The group has already talked to election officials and voting experts, Collins says, and lawmakers are hoping to take a similar approach to when they negotiated and passed the bipartisan $1.2 trillion infrastructure bill in August, after months of intense discussions.

Leaders from both parties have expressed interest in reforming the law. Senate Minority Leader Mitch McConnell called the ECA “clearly flawed” and urged lawmakers to “figure out a bipartisan way to fix this.” On the left, Senate Rules Committee Chair Amy Klobuchar of Minnesota and Senate Whip Dick Durbin of Illinois are working with King on his bill, their aides say. And so far, Manchin also supports reforming the ECA. “We have total support from Democrats and Republicans,” he said Thursday. “Let’s do what we can do. I think that’s very doable.”

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The arcane legislation, passed in 1887, sought to clarify how Congress should handle state disputes about contested presidential results after several states submitted conflicting slates of electors in the 1876 election of Republican Rutherford B. Hayes over Democrat Samuel Tilden, when there was no constitutional instruction for how Congress should handle the vote discrepancies.

But the Act’s imprecise verbiage emboldened chants of “Hang Mike Pence” by Capitol rioters who believed the then-Vice President had the power to refuse to certify Joe Biden as the winner, instead of the ceremonial right to open the electoral certificates and “preserve order.” Select Republican lawmakers also used the 1800s-era law’s low challenge thresholds—just one member from each chamber is needed to initiate an objection to a state’s electors—in an attempt to invalidate electoral counts from pivotal states that selected Biden by popular vote.

“The most recent presidential election exposed outdated loopholes that could allow politicians to substitute their preferences for the results of elections,” King told TIME last week, “and I believe Congress should take steps to reform these vulnerabilities,”

King’s bill would clarify the role of the Vice President in certifying Presidential election results as a purely ceremonial one, and make it much more difficult for rogue Members of Congress to interfere in the process by raising the number of members needed to object to a state’s electoral count. It would also update transmission deadlines to ensure there is enough time for states to resolve post-election disputes and select their electors, according to a working summary of the bill obtained by TIME.

Collins says she also wants to clarify that the Vice President’s power is merely to open and read electoral certificates rather than decide which ones to count. “There are so many ambiguities in a law that is nearly 150 years old,” Collins told reporters Thursday. “We need to clarify: what is the role of the Vice President precisely, make it clear that it’s ministerial.” Her team is also looking into creating protections against violence and threats for poll workers and election officials, as well as providing additional grant funding for states to improve voting systems.

The Biden Administration welcomes ECA changes but does not view them as a substitute for broader voting-rights legislation, White House Press Secretary Jen Psaki said Thursday. During a marathon news conference Wednesday afternoon, prior to the Senate’s vote that blocked passage of the voting-rights bills, Biden warned that future elections may be “illegitimate” if Democrats’ broader plans to overhaul the voting system were not put in place.

Both Republicans and Democrats are beginning to believe reforming the ECA might be their best hope to get something done in an evenly divided Senate. But unlike the broader voting reform bills that would have affected the midterm elections, the ECA only comes into play during presidential cycles.

“It’s not like there’s immediate urgency to quickly get a bill in place,” Republican Senator Mitt Romney of Utah told reporters Thursday, “because we don’t have a presidential election for quite a while.”

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