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Why progress on the Electoral Count Act might be possible

The good news is, there's an ongoing effort to reform the Electoral Count Act. The better news is, it's not necessarily doomed to fail.

It's no secret that 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 results. What's less known is why Eastman thought his scheme would work.

As regular readers know, the GOP attorney was convinced that then-Vice President Mike Pence, rather than honor the results of the election, could exploit ambiguities in the Electoral Count Act of 1887 and set aside the Electoral College votes of seven states.

Eastman's scheme, obviously, didn't work — but that doesn't mean the Electoral Count Act's ambiguities should remain unresolved.

The good news is, there's an ongoing effort to reform the 135-year-old election statute. The better news is, it's not necessarily doomed to fail. Axios reported late yesterday:

While broader federal voting rights legislation remains mired in the Senate as long as the 60-vote filibuster rule applies, Senate Minority Whip John Thune (R-S.D.) told Axios there's "some interest" among Senate Republicans in reforming the Electoral Count Act of 1887. The goal would be to clarify the role the vice president and Congress play in certifying presidential elections.

The South Dakota Republican was quick to denounce Democratic efforts such as the Freedom to Vote Act. Thune added, "But with the Electoral Count Act, as we saw last time around, there are some things there that, I think, could be corrected."

In case anyone needs a refresher, the Electoral Count Act 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.

In the Democratic-led House, progress appears likely — with at least some modicum of bipartisan backing. For example, Republican Rep. Liz Cheney of Wyoming, the Jan. 6 committee's co-chair, has already endorsed reforms, and there's no obvious reason for others in the GOP to balk. Plenty of other prominent conservative voices have argued that the Electoral Count Act can and should be fixed.

In the Senate, Minnesota's Amy Klobuchar, the Democratic chair of the Rules Committee, recently said, "The antiquated law governing the Electoral College vote count is too vague and ripe for abuse, and it resulted in baseless objections that delayed the democratic process. It's time to update this law to safeguard our democracy."

The fact that Thune, the #2 Republican in the Senate, is at least somewhat sympathetic to reforms, suggests the door to progress is open.

But as the process moves forward, I'd recommend keeping an eye on two relevant angles.

First, a lot of members are going to need to be educated. Republican Sen. Susan Collins of Maine, for example, told Axios yesterday that she doesn't believe reforming the Electoral Count Act is necessary: "It seems to me we have a good system for the Electoral College to act and one of the important moments of January 6 was that we returned and finished our work under that law."

As a substantive matter, that really didn't make sense, and it was a reminder that many senators may not know what the Electoral Count Act even is.

Second, it's important to separate reforming the Electoral Count Act and the Democrats' voting rights efforts, including the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. The conservative editorial board of The Wall Street Journal today suggested some kind of deal in which the parties reach a compromise on the Electoral Count Act and then discount the other elections-related legislation.

I fear a couple of conservative Senate Democrats may find such an approach appealing, but reforming the Electoral Count Act won't make the other bills any less necessary.

Update: Senate Majority Leader Mitch McConnell added this morning, in reference to the ECA, “It obviously has some flaws. And it is worth, I think, discussing."