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When John Eastman, the highly controversial 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, his strategy focused on a specific task: exploiting ambiguities in the Electoral Count Act.
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. For generations, it was largely treated as a legal afterthought, if it was thought of at all.
All of that changed in dramatic fashion during the Trump era — or more specifically, as the Trump era came to a difficult end — when it became obvious that the antiquated law was in need of an overhaul.
The Washington Post’s Greg Sargent, who’s been banging the ECA drum for more than a year, has 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.
The challenge, of course, was coming up with reforms that could overcome a Republican filibuster in the Senate. The good news was that GOP leaders conceded last year that the existing law’s “flaws“ needed fixes. The better news came yesterday: As NBC News reported, Senate negotiators reached an agreement on a compromise package.
After months of negotiating, a group of senators announced two proposals Wednesday designed to close gaps in federal law and prevent future candidates from stealing elections. The measures — called the Electoral Count Reform and Presidential Transition Improvement Act and the Enhanced Election Security and Protection Act — are led by Sen. Susan Collins, R-Maine, and Sen. Joe Manchin, D-W.Va.
So, what would the legislation do? The legislative text was posted online overnight, but let’s review some of the highlights. The compromise measures would:
- make it explicitly clear that the vice president’s role in certifying election results is “solely ministerial,” and that she/he can’t unilaterally reject electors at will;
- make it more difficult for lawmakers to formally object to electors;
- create new protections for election workers;
- and provide resources to both parties’ candidates to aid in the transition process.
But perhaps the most difficult part of talks focused on ensuring that the proper electors are counted. To that end, the Senate’s compromise would prohibit states from changing how electors are chosen after the election.
That, however, is really just the start. A Washington Post editorial summarized:
By identifying governors as responsible for submitting a slate of electors, appointed according to rules in place before Election Day, the legislation would exclude competing lists from other officials. Better yet is a process to counter a rogue governor who lodges an illegitimate submission for approval by a friendly House or Senate. Under the reformed act, any such attempt could be challenged by a vice-presidential or presidential candidate in federal courts, to whose judgment Congress would be bound. Finally, the bill would ensure that state legislatures can’t simply override the popular vote by calling it a “failed election.”
It would be an overstatement to see this as a wholesale fix for systemic electoral concerns. The John Lewis Voting Rights Advancement Act, for example, remains necessary, and its goals are not addressed in the new Senate compromise.
But negotiators didn’t even try to answer those questions in these talks. Rather, this was a more narrowly focused effort, inspired to counter Team Trump’s insurrectionist goals, to prevent future coups.
And these measures would go a long way toward preventing such future crises.
Proponents are cautiously optimistic about the bills’ chances, and the Senate Rules and Administration Committee has already scheduled a hearing in the hopes of advancing the measures relatively quickly.
That said, there is a whole other chamber, and the bipartisan leadership of the House Administration Committee offered a cool response to the Senate breakthrough, suggesting the larger negotiations may not be entirely over. Watch this space.
The House Jan. 6 committee will hold its eighth public hearing on Thursday at 8 p.m. ET. Get expert analysis in real-time on our live blog at msnbc.com/jan6hearings.
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