FFor five months, a bipartisan committee in Congress worked to update the Electoral Count Act. It is the 1887 law Donald Trump and his aides tried to use to reverse the election on January 6, 2021. The working group’s members have repeatedly emphasized that there is ample support for updating the little-known statute.
“This will pass,” Sen. Joe Manchin, Democrat of West Virginia, told The New York Times Februar. “There’s broad consensus,” Sen. Thom Tillis, Republican of North Carolina, said to TIME last week.
But if lawmakers want to change the law before this year’s elections, the window is closing fast. It will be much harder to accomplish the task if they fail, or if Republicans win control of both houses of Congress.
Some advocate worry that the time may be too soon. “It would be good if they can prioritize it and come to some agreement in the next little bit,” Lisa Gilbert, the executive vice president for Public Citizen, a consumer advocacy lobbying group that has been pushing for changes to the ECA, tells TIME. “Frustration is more likely to mount as the time runs out and we get toward the end of the hearing process, and we haven’t yet seen that consensus be reached.”
Participants in this effort expect to submit a bill updating key sections of 19th century law this summer. Washington experts are not optimistic that legislation will pass Capitol Hill before the five week summer recess.
“Even if they have the votes to overcome whatever obstructive tactics individuals or smaller groups might want to use, it takes time,” says Norman Ornstein, an expert on Congress and a senior fellow emeritus at the American Enterprise Institute. “The bigger problem here is that once you get past August, we’re fully into midterm season.”
His suspicions are compounded by the fact that no bill has been introduced yet by legislators. “It makes you wonder whether they’re serious about doing anything or just doing this for show.”
Constitutional Crisis
In 1887, Congress passed the Electoral Count Act to resolve a bitter presidential election in which Republican Rutherford B. Hayes beat Democrat Samuel Tilden. Many states had submitted their own slates of voters after that 1876 election. Because there was no standard for handling such crises, lawmakers took weeks to resolve the issue.
The Electoral College Act provided those rules, but in language that is vague and archaic and doesn’t translate well into the modern world. Some Trump allies used ambiguities in the law to bolster their efforts to block Congress from formally certifying Joe Biden’s election victory on Jan. 6, 2021. John Eastman (law professor) was one of the main architects of this scheme. He claimed that Vice President Mike Pence had the power to deny Biden’s election victory certificate. This view is not supported by most legal professionals. Trump’s team also tried to use other provisions in the law to toss out Electoral College votes for Biden.
“They knew that, under the 12th Amendment, if nobody collected a majority in the Electoral College, that the contest would shift immediately over to the House for a so-called contingent election,” Rep. Jamie Raskin, Democrat of Maryland, tells TIME.
Raskin sits on the House Select Committee investigating the Capitol Attack. This committee has also considered overhauling the Electoral Count Act. This panel will host several hearings in June and release a report with recommendations to change the obscure law.
The committee’s members have been tight-lipped on how exactly they believe the law should be changed. They want to wait until after the hearings and the report’s release to put forth a bill, according to people familiar with the discussions who requested anonymity to disclose them.
They are expected to attract a lot of attention from the media. Rep. Bennie Thompson, Democrat of Mississippi and the committee’s chairman, says he will hold some of them in prime-time, in the hopes of drawing millions of viewers. To present the most powerful narrative about the events of that day as well as the preceding weeks, committee officials will hire a multimedia production firm.
The 9/11 Commission Report was a great example of a professional writer. They want to avoid what happened with the Mueller Report which was dry and only a few Americans read. “The Muller report reads like most documents in Washington—as if it were written by a computer after a long committee process,” says Raskin. “So we want to have as much clarity, emphasis, and narrative power as possible.”
Many of the committee members are hopeful that the hearings and the report will galvanize interest from lawmakers to rewrite some of America’s voting laws, including the Electoral Count Act, to strengthen democracy and prevent anything like the Capitol riot from happening again.
The Electoral Count Act “could be used in the future by someone who’s trying to consolidate power, so I think it’s worthy of our time and attention,” Rep. Pete Aguilar, Democrat from California, tells TIME. “But we’re not ruling anything exclusively in or out. We’re going to have a number of conversations and devote some time to this.”
Timelines that are tight
There are many things that can be done to Congress in a given time frame, and this is even more true during an election year.
After Democrats failed to pass a comprehensive voting rights package, Democrats, Sen. Kyrsten Silena of Arizona and Senator Manchin of Illinois, didn’t want to override the filibuster in order to get it passed, the bipartisan effort to reform the Electoral Count Act picked up steam. The Senate working group emerged shortly thereafter, with members on both sides of the aisle promising this was the one change to American voting laws that could make it to Biden’s desk in this hyperpartisan environment.
That same month, three Democrats announced they had a “discussion draft” of legislation to make three primary changes to the law, including making crystal clear that the vice president’s role in overseeing Congress’ certification of the Electoral College was purely a ceremonial one. The draft would have also increased the number of legislators needed to support an objection to a state’s slate of electors before a full chamber had to vote on it, and raised the threshold for lawmakers to reject any electors to a three-fifths majority from a simple majority in both chambers.
Hill sources who are familiar with the matter say the legislators are far behind schedule in order to get the law passed before the election.
If lawmakers choose to wait until after the Jan. 6 committee holds its hearings and releases its report, a bill updating the Electoral Count Act won’t be filed until late June or early July. That would give lawmakers roughly four or five weeks before members leave for an August recess, roughly a month to go through the arduous process of moving a bill through both chambers of Congress and getting it to the president’s desk. It’s a tall order, period, let alone in such a condensed time frame, leaving some to question whether such a hurried legislative push can lead to anything meaningful.
Congress seldom gets anything done before an election. If the GOP gains control of Capitol Hill in the next election, many predict, Republicans loyal to Trump will likely block the bill from moving forward. They may view it as a public repudiation of Trump and acknowledgement of the fact that the Capitol attack was much more than an unruly protest.
TIME has learned that even with Democrats as the leaders during the last months of 2022’s lame duck session, it may be difficult to pass such a measure. Sources familiar with the matter tell TIME. If there was enough Republicans with nothing left to lose, the only way of surviving would be for them to do so. “Any Republicans who are not coming back, either who have lost or who are retiring, will be free to act in a more moderate fashion,” says a Democratic House aide. “There might be some Republican votes from folks who don’t care anymore about their base.”
Still, that’s a gamble. Gilbert feels that lawmakers need to move quickly and should not delay in introducing legislation until the Jan.6 committee has finished its work. They may not be able update the Electoral Count Act in time for the 2024 elections. “The only way this will be achieved is if it’s dual tracked,” she says. “The conversations that are happening in the Senate with the bipartisan group need to continue. But they need to come to some consensus about the reforms simultaneously to the process with the hearings playing out.”
It is a case she’s now making to members of Congress. It is not common for legislation to be passed quickly in a divided Senate, as they know all too well. “You never have 60 votes,” says Tillis, “til you get ’em.”
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