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As Senate Democrats tried to advance voting rights protections, some on the right suggested a counter-proposal. The editorial board of The Wall Street Journal made the case, for example, that if the governing majority abandoned its elections priorities, Republicans would likely reach a compromise on the Electoral Count Act.
Democrats were quick to reject such talk and continued to push voting rights protections, which ultimately came up two votes short.
But an important detail lingered: The Electoral Count Act actually needs to be reformed, whether the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act passed or not.
With this in mind, it was notable to see evidence of some progress on this front. Axios reported yesterday:
The bipartisan group focused on updating the Electoral Count Act of 1887 is seizing on this recess period to court senators more freely.... The group is led by Sen. Susan Collins (R-Maine) and includes many members who helped reach the bipartisan infrastructure deal. They see themselves as the only hope of creating an election reform package able to muster 60 votes in the Senate.
Politico added that the Senate group is now up to 16 members.
I can appreciate why many are reluctant to get too excited about any legislative progress on election reforms, especially in the wake of the recent failures in the Senate, but don't be too quick to dismiss the possibility of success as these negotiations move forward.
In case anyone needs a refresher, the Electoral Count Act of 1887 was passed in the aftermath of a brutally messy election controversy, and it was designed to establish a congressional process for certifying electoral votes.
It's also badly in need of an overhaul. The Washington Post's Greg Sargent, who's been banging the ECA drum for months, recently pointed to hypothetical scenarios in which a Congress led by one party could try to exploit Electoral Count Act ambiguities to reject the other party's electors and/or accept a rogue set of electors. Clarifying the vice president's ceremonial role in the certification process is equally important.
Indeed, when John Eastman, a Republican lawyer on Donald Trump's team in the aftermath of the former president's defeat, wrote an infamous memo intended to help overturn the 2020 results, he specifically tried to exploit ambiguities in the Electoral Count Act.
At this point, you're probably thinking, "Yeah, sure, but if a reform bill can't get 60 votes, why even have the conversation?" And while that's obviously a sensible question, it's worth emphasizing that GOP leaders in both the Senate and the House have expressed at least modest support for a bipartisan ECA reform bill.
This is not to say a breakthrough is imminent or inevitable. NBC News reported that the Senate negotiators are, among other things, grappling with how to protect election workers from harassment, which is a thorny issue.
But the door is clearly open and these talks are well worth watching.