Jan. 19—While the Democratic effort to protect voting rights is blocked in the Senate, both of Maine's senators are working to reform a 135-year-old federal law and prevent future efforts to overturn a presidential election during the ceremonial counting of Electoral College votes.
The 1887 Electoral Count Act lays out how Congress counts the official Electoral College ballots sent to Washington from the 50 states in early January after each presidential election. It was this certification process — and ambiguities in the wording of the law — that former President Donald Trump and his congressional allies leveraged on Jan. 6, 2021, in an attempt to overturn the 2020 presidential election. The mob of Trump supporters that attacked the Capitol that day sought to disrupt this ceremonial count and punish Vice President Mike Pence for failing to block it.
"The law as it currently stands is confusing and ambiguous and created a situation last winter where we narrowly avoided a true constitutional crisis," Sen. Angus King, whose staff has been quietly working on fixes to the law since May 2020, told the Press Herald on Tuesday night. "It's vital that we reform the Electoral Count Act so we don't have uncertainty when it comes time to transfer power to a new president."
King's behind-the-scenes effort has included Democratic Senate colleagues Amy Klobuchar of Minnesota and Richard Durbin of Illinois and aims to update and clarify archaic wording about the roles of Congress and the vice president in the certification of the Electoral College results.
It would raise the threshold for objecting to the results from one member of each chamber to one-third of all members and update timetables for resolving any post-election disputes. It also would make clear that the role of the vice president and Congress is limited to ensuring the Electoral College ballots themselves are legitimate, not to challenge the certified results of the popular elections that chose the number of electors for each candidate.
Sen. Susan Collins, a Republican, has launched a parallel effort in recent weeks to reform the ECA and possibly some voting rights measures, although few details have been made publicly available. Collins declined an interview request to discuss it.
Axios reported on Jan. 6 that Collins had held a Zoom call with a bipartisan group of senators including Democrats Kyrsten Sinema of Arizona, Joe Manchin of West Virginia and Jeanne Shaheen of New Hampshire, plus fellow Republicans Thom Tillis of North Carolina, Mitt Romney of Utah, Roger Wicker of Mississippi, Steve Daines of Montana and Ron Johnson of Wisconsin.
"I would like personally to see the language (in the ECA) change so that it's clear that the vice president is performing just the ministerial role and does not have the authority to change or block counts from the states," Collins told Axios at the time.
Collins' spokesperson Annie Clark said in a written statement that the senator's group consisted of more than a dozen senators and in addition to ECA reforms was focusing on protecting elected officials from harassment and unwarranted removal and securing funds and technical support to help states update voting machines and improve election management through the 2002 Help America Vote Act.
"This is an effort that this group takes very seriously," Clark wrote. "While they are not locked into a particular timeframe, they are also committed to drafting a thoughtful bill as quickly as possible."
Clark also forwarded a Jan. 17 news roundup from the Washington, D.C., political news site Punchbowl that argued the key question going forward on elections protections would be whether Democrats will settle for whatever measures Collins' group comes up with. "Realistically, with the large-scale voting rights package that Democrats crafted unlikely to go anywhere, if Biden wants a victory, it may be with this bipartisan effort," Punchbowl wrote.
It's not clear why Collins developed her effort separate from King's, but its bipartisan character suggests electoral reform might have a path to securing the 10 Republicans it would need to pass the chamber.
"If you have Collins and more conservative Republicans like Tillis and Wicker the assumption is that it would get to 60 votes," King said. "But the tougher question will be what will the bill say."
'NO SUBSTITUTE' FOR VOTING RIGHTS
King emphasized that the electoral count reforms were no substitute for the voting rights legislation that Republicans — including Collins — have blocked from proceeding in the Senate three times. Senators began debating that bill once again on Wednesday and Republicans were expected to block it again as soon as Wednesday evening.
King, an independent who caucuses with the Democrats, has said passage of voting rights bills are essential to the survival of democracy at a time when Republican state legislatures are imposing a variety of measures to make it more difficult for voters to cast their ballots and, in some states, making changes that place the oversight and certification of elections in the hands of partisan actors.
"One of the problems we're dealing with thus far is that there's been no Republican interest whatsoever in even negotiating voting rights legislation," King said. He noted that the Democrats' initiatives essentially adopt Maine's system on a national basis: same day voter registration, early in-person voting, mail-in absentee ballots, voting machines with paper trails.
"We've had all these things in Maine with no voter fraud," King said. "I pointed this out to one of my Republican senate colleagues and said, 'What you're really telling me is that people in your state aren't as honest as those in my state.'"
Maine's top election official praised King's efforts on voting rights and the electoral count reform, but said the country needed Congressional action on both.
"The January 6 attack on the U.S. Capitol and the subsequent wave of anti-voting legislation across the country fundamentally threatens our democracy, and we can't have one reform without the other," Secretary of State Shenna Bellows said via email. "Counting all the votes is only meaningful if all of the voters are able to participate."
Bellows said the real long-term solution to the various problems raised by the Electoral College was to do away with it entirely and simply choose the president through the nationwide popular vote.
"It's alarming that the debate is about tweaking a system that came so perilously close to failure to uphold the will of millions of voters," she said. "I'm concerned that the debate about the Electoral Count Act is a distraction from the urgent need to preserve the right to vote for all American citizens."
Collins has declined interview requests about her position on voting rights, but said via written statements that the Democrats' bill was "an evolving grab-bag of progressive ideas and causes, many of which they were promoting prior to the 2020 election." Concerns about the collapse of U.S. democracy, she said, amounted to "harmful alarmism."
Edward Foley, Ebersold Chair in Constitutional Law at Ohio State University, said the Electoral Count Act does need addressing. "The statute is written in such strange language to the modern ear and it's very convoluted, so just clarifying its meaning would be very valuable," he told the Press Herald.
He said one misunderstood element of the statute is that it only deals with how Congress receives and counts the Electoral College's final ballots. Congress has no role in overseeing or second-guessing how a state came to certify its popular election results which are, technically speaking, not to elect the president but rather to choose that state's Electors who then choose the president.
"Any issue about counting the popular vote needs to be resolved before the Electors meet and the Constitution says what day that is across the country," Foley noted. "So you can't delay that process and once it's been finalized it's over."
"It's not Congress's job to relitigate the popular vote," he said. "Their Jan. 6 meeting is not adjudication, it's just ensuring they have received the right (Electoral College) documents."
Derek Muller, Bouma Fellow in Law at the University of Iowa, said he expected Congress would adopt the electoral count reforms, not least because both parties have a self-interest in doing so.
"The vast majority of Congress is not interested in seeing more of what we saw on Jan. 6, but they also don't know who will be most affected by these reforms when they meet (to count the Electoral College ballots) in January 2025," Muller said. "For Republicans, they're looking at Vice President Kamala Harris and saying 'maybe I don't want her to have the power to make objections.' And Democrats are like: if the GOP wasn't in control of Congress last time, they might be next time."
"That's the nice thing when you don't know what the (2024) election holds," he said.