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

Late Wednesday night, Democratic Senators experienced a loss You can find more information at Itching 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, Kyrsten Sinema.

Democrats were hoping to pass two bills, the John Lewis Voting Rights Advancement Act which would have strengthened parts of the 1965 Voting Rights Act and the Freedom to Vote Act. These would have increased voting access and would have required early voting periods for at least 15 days, made it harder for states to remove voters who are not eligible from their voter rolls.
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It was contentious, emotional floor voting. “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. (Even though Sinema, Arizona, and Manchin from West Virginia supported the merits the bills were passed by the Senate with simple majority votes.

The next day, Senators of both parties began to have conversations about how to work together to enact a smaller piece of electoral reform. This was fixing a 135-year old law known as the Electoral Count Act. Donald Trump and his allies seized upon it in their efforts to enact election reform. You can challenge election certifications Last January, a storm erupted at the U.S. Capitol.

Maine Senators Angus King and Susan Collins are the leaders of ECA reform. According to an aide, King has been working to draft legislation that would improve the ECA’s performance for nine months. After the failure of the larger bills, King began to reach out more about the plan and spoke with Senator Mike Rounds from South Dakota. The King team told TIME that he discussed the possibility of fixing the ECA on Thursday.

Collins also organized ECA talks with Senators representing both sides in the last few weeks. Collins stated Thursday that six Democrats met virtually over the next few days with Republicans to discuss possible deals. Collins claims that the group already has spoken to voting experts and election officials. Collins also says lawmakers hope to adopt a similar approach as when they passed and negotiated bipartisan $1.2 trillion. Infrastructure billAfter months of intensive discussions, August saw the final result.

Both parties’ leaders expressed an interest in the reform of 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 According to their aides, they are working alongside King on the bill. Manchin has so far also supported 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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In 1887, the arcane legislation was passed to clarify how Congress should deal with state contests about contested presidential results. This came after several states submitted different slates of voters in the election of Republican Rutherford B. Hayes, over Democrat Samuel Tilden in 1876. There were no instructions in the Constitution on how Congress should address the voter 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. TIME obtained a draft of King’s bill. According to TIME, the bill would change transmission deadlines so that states have enough time to solve post-election issues and elect their representatives.

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.

According to Jen Psaki, White House Press Secretary Jen Psaki, the Biden Administration is open to ECA amendments but not as a replacement for broad voting-rights legislation. The ECA changes were made 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.

Republicans and Democrats alike are starting to think that the ECA reform may be their only hope of getting something done in an equally divided Senate. However, unlike other voting reform legislations that could have had an impact on the midterm elections and the ECA does not come into effect 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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