The Electoral Count Act, the law governing how Congress certifies presidential elections, is filled with gaps and ambiguities. But Democrats shouldn’t jump at the apparent willingness of Senate Minority Leader Mitch McConnell, R-Ky., to overhaul it.
"Aside from all the other things they are discussing, this is something that’s worth discussing," McConnell said on Wednesday. Sen. Pat Toomey, R-Pa., and Susan Collins, R-Maine, echoed that view to NBC News. There may even be enough support across the aisle to overcome a filibuster in the closely divided Senate.
While changes to the law’s vague, easily twisted language are important to prevent another round of the chaos that former President Donald Trump inspired last year, McConnell knows better than anyone that reforming the Electoral Count Act absent “all the other things” Democrats want in terms of voting rights would be a new coat of paint on a house that’s about to collapse.
McConnell’s modus operandi throughout his years in the Senate has been to block, stymie and otherwise subvert changes to federal election law that he believes would disadvantage Republicans. In his view, anything beyond the status quo — whether it’s more transparent elections or easier voter participation — must be treated as a partisan attack and defeated.
A relatively early example is McConnell’s opposition to what would become the National Voter Registration Act of 1993. We take many of its provisions for granted today, especially the requirement that states allow people to register to vote while renewing their driver’s license. The bill originally passed Congress in 1992 but was vetoed by then-President George H.W. Bush. And McConnell’s arguments then sound awfully familiar today:
Senator Mitch McConnell of Kentucky, who led the Republican effort to defeat the registration bill, characterized it as "a solution in search of a problem" because, he said, low voter turnouts demonstrated that the electorate was basically happy with its leaders. […]
Republicans, who twice in the last year used the threat of a filibuster to block the measure from coming to the floor, say the bill will encourage vote fraud. Democrats, on the other hand, say Republicans fear that increasing the number of registered voters would add millions of Democrats to the rolls.
McConnell used the same phrase — “a solution in search of a problem” — in September to describe Senate Democrats’ revamped Freedom to Vote Act. That bill was designed to attract at least some Republican support. But with McConnell at the helm, not a single GOP senator has signed on.
There have been rare occasions where McConnell has been on board with new federal election laws. In the aftermath of the 2000 presidential election, McConnell helped craft a bipartisan deal on what would become the Help America Vote Act. And in 2004, he supported permanently reauthorizing the preclearance provisions of the Voting Rights Act — which required states with a history of disenfranchisement to get Justice Department signoff on changes to their election laws:
Republican Sens. Bill Frist of Tennessee, the majority leader, and Mitch McConnell of Kentucky, the majority whip, went on record last week supporting permanent reauthorization of the key section.
"Senator McConnell and I want to make clear that America will never renege on the hard-fought gains of the civil rights movement," Frist said. "We don't want anyone to fear that their right to vote will ever be taken away."
[…]
"The protections in the Voting Rights Act are, frankly, too important to provide on only a temporary basis," McConnell said.
When the Senate unanimously reauthorized the act in 2006, McConnell said he was “pleased the Senate reaffirmed that our country must continue its progress towards becoming a society in which every person, of every background, can realize the American Dream.”
But then the Supreme Court issued its ruling in Shelby County v. Holder in 2013. In a 5-4 decision, the court gutted the preclearance requirement but left the door open to Congress to restore it. That provided McConnell the cover he needed to shift to his preferred default: Instead of backing a law on the books, he would now be opposing what he can frame as new federal overreach.
Instead of backing a law on the books, McConnell would now be opposing what he can frame as new federal overreach.
“What was struck down were the provisions that absurdly treated the South differently,” McConnell told USA Today in 2016. “They don’t apply anymore. It’s 50 years later.” (A quick fact check: Counties in New York and California were also subject to preclearance; the South wasn’t treated differently, it just had more of a history of disenfranchisement.)
His stance hasn’t changed since then, despite GOP-led states taking advantage of the weakened VRA to pass laws designed to make voting harder. In June, he even said that voting rights is “not a federal issue.” Case in point: The Democrats’ other main voting rights bill, the John Lewis Voting Rights Advancement Act, would reinstate the provisions the Supreme Court has decimated. The bill has the support of only one Republican in the Senate — and it isn’t McConnell.
So why, then, is McConnell showing his willingness to take up reforms to the Electoral Count Act? Because he knows that offering the chance for a bipartisan win is tempting to many moderate Democrats. A stand-alone bill on the Electoral Count Act could sap the unified Democratic support for the Freedom to Vote Act. Moreover, that kind of bipartisan cooperation would also likely undercut any momentum toward reforming the filibuster to carve out an exception for voting rights, leaving red states free to make the ballot box as inaccessible as possible.
In layman’s terms, McConnell is saying “What if instead of a pepperoni pizza, I just give you a stick of pepperoni and we call it square?” Luckily, Senate Majority Leader Chuck Schumer, D-N.Y., seems unwilling to take the bait. He’s promised to “debate and consider changes to the rules” by Jan. 17 if Republicans continue to stand in the way of the two voting rights bills.
But McConnell isn’t likely to budge anytime soon. And he knows that all he needs is one — one Democrat to remain willing to put his promise of “bipartisanship” ahead of voting rights. It’s up to Schumer to make sure that nobody breaks ranks in the name of a short-term victory.
