Jan 5, 2022 - Politics & Policy

Top Senate Republican signals support for election reform

Sen. John Thune is seen speaking.
Sen. John Thune. Photo: Eric Lee/Bloomberg via Getty Images

A top Republican is signaling his party isn't necessarily opposed to joining with Democrats to clarify an existing federal law to reduce the potential for election subversion.

Driving the news: While broader federal voting rights legislation remains mired in the Senate as long as the 60-vote filibuster rule applies, Senate Minority Whip John Thune (R-S.D.) told Axios there's "some interest" among Senate Republicans in reforming the Electoral Count Act of 1887.

  • The goal would be to clarify the role the vice president and Congress play in certifying presidential elections.
  • Both were flashpoints a year ago as Donald Trump challenged the finalization of the 2020 election results.

Why it matters: The crux of the issue is the bill doesn’t specify if the vice president is merely ceremonial or if the VP actually has the power to refuse to certify certain electors.

  • A false reading might suggest the vice president has the power to decide which slate of electors he or she wants to certify.
  • Most experts — including conservative ones — say this is not at all what the Founders intended.

Trump lawyer John Eastman capitalized on this ambiguity by outlining in a memo several ways former Vice President Mike Pence could delay the process a year ago.

  • He suggested Pence could throw the election to the House or adjourn the session to give states time to send slates of electors for Trump on the basis of election fraud.
  • Pence, after consulting with lawyers and the bill itself, announced he would do no such thing.

The big picture: The consideration is part of a two-track effort to address voting rights and elections.

At the same time, there's a narrower effort to reform the Electoral Count Act that's been gaining momentum.

  • Because of its limited scope, it may have a better chance of passing.

What they're saying: "What the Democrats are trying to do [with voting rights] is have a government take over state regulation administration of elections, which is not something we're for," Thune told Axios as he rode in a Senate elevator.

  • "But with the Electoral Count Act, as we saw last time around, there are some things there that, I think, could be corrected."
  • Yuval Levin of the American Enterprise Institute told Axios: "It should be pretty clear that it needs to be clarified, that a vice president shouldn't have to be in the position of saying 'no' to the president."
  • "Instead, the law should be really clear and it should never arise."

But, but, but: Some Democrats are concerned that making changes to the Electoral Count Act would reduce the urgency to pass federal voting rights bills.

  • Indeed, part of the appeal for Republicans is that reforming the Electoral Count Act relieves the pressure for election reform that might prompt Democrats to kill or seek a carve-out to the filibuster.

On Tuesday, Senate Majority Leader Chuck Schumer shot down the idea of supporting Electoral Count Act reform instead of voting rights legislation.

  • "That makes no sense," he said. "If you're going to rig the game and say, "Oh, we'll count the rigged game accurately,' what good is that?"
  • Marc Elias, a top Democratic election lawyer, also wrote, "While no one questions that this Act needs reform, the idea that we can fix democracy simply by revising this one law is simplistic and wrong."
  • "It ignores the fact that election subversion begins with the rules used for voting and continues through state certification processes. It also ignores the reality that presidential elections are not the only ones being targeted for subversion."

Be smart: While Thune is the Senate GOP caucus' No. 2 figure, other members like Sen. Susan Collins (R-Maine) don't see Electoral Count Act reform as necessary.

  • She told Axios, "It seems to me we have a good system for the Electoral College to act and one of the important moments of January 6 was that we returned and finished our work under that law."
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