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    Senators Look to Fix 1887 Electoral Act Putting U.S. Democracy at Risk

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    A bipartisan group of lawmakers wants to fix the Electoral Count Act, the obscure law used to justify the Jan. 6 riot. Is it even possible?The Electoral Count Act is both a legal monstrosity and a fascinating puzzle.Intended to settle disputes about how America chooses its presidents, the 135-year-old law has arguably done the opposite. Last year, its poorly written and ambiguous text tempted Donald Trump into trying to overturn Joe Biden’s victory, using a fringe legal theory that his own vice president rejected.Scholars say the law remains a ticking time bomb. And with Trump on their minds, members of Congress in both parties now agree that fixing it before the 2024 election is a matter of national urgency.“If people don’t trust elections as a fair way to transition power, then what are you left with?” said Senator Angus King, an independent from Maine who has been leading the reform efforts. “I would argue that Jan. 6 is a harbinger.”‘Unsavory’ originsThe Electoral Count Act’s origins are, as King put it, “unsavory.”More than a decade elapsed between the disputed election that inspired it and its passage in 1887. Under the bargain that ended that dispute, the Republican candidate, Rutherford B. Hayes, agreed to withdraw federal troops from the occupied South — effectively ending Reconstruction and launching the Jim Crow era.The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 — which lays out what is meant to happen when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.Amy Lynn Hess, the author of a grammatical textbook on diagraming sentences, told us that mapping out that one sentence alone would take about six hours and require a large piece of paper.“It’s one of the most confusing pieces of legislation I’ve ever read,” King told us. “It’s impossible to figure out exactly what they intended.”King has been working through how to fix the Electoral Count Act since the spring, when he first started sounding the alarm about its deficiencies. His office has become a hub of expertise on the subject.“It just so happens I have a political science Ph.D. on my staff,” King said. “And when I assigned him to start working on this, it was like heaven for him.”Last week, King and two Democratic colleagues, Senators Amy Klobuchar of Minnesota and Dick Durbin of Illinois, introduced a draft discussion bill aimed at addressing the act’s main weaknesses.King said he hopes it will serve as “a head start” for more than a dozen senators in both parties who have been meeting to hash out legislation of their own.One leader of that effort, Senator Joe Manchin III of West Virginia, a Democrat, vowed on Sunday that a reform bill “absolutely” will pass. Senator Lisa Murkowski, a Republican of Alaska, said the lawmakers were taking “the Goldilocks approach” — as in, “we’re going to try to find what’s just right.”But finding a compromise that will satisfy both progressive Democrats and the 10 Republican senators required for passage in the Senate won’t be easy. Already, differences have emerged over what role the federal courts should play in adjudicating election disputes within states, according to people close to the talks.Mr. Worst-Case ScenarioFew have studied the Electoral Count Act more obsessively than Matthew Seligman, a fellow at Yale Law School.In an exhaustive 100-page paper, he walked through nearly every combination of scenarios for how the law could be abused by partisans bent on stretching its boundaries to the max. And what he discovered shocked him.“Its underexplored weaknesses are so profound that they could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball,” Seligman warns.He found, for instance, that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the results of the presidential election and the party that won legitimately would have been powerless to stop it.”Seligman refrained from publishing his paper for more than five years, out of fear that it could be used for malicious ends. He worries especially about what he calls the “governor’s tiebreaker,” a loophole in the existing law that, if abused, could cause a constitutional crisis.Suppose that on Jan. 6, 2025 — the next time the Electoral Count Act will come into play — Republicans control the House of Representatives and the governorship of Georgia.Seligman conjures a hypothetical yet plausible scenario: The secretary of state declares that President Biden won the popular vote in the state. But Gov. David Perdue, who has said he believes the 2020 election was stolen, declares there was “fraud” and submits a slate of Trump electors to Congress instead. Then the House, led by Speaker Kevin McCarthy, certifies Trump as the winner.Even if Democrats controlled the Senate and rejected Perdue’s electoral slate, it wouldn’t matter, Seligman said. Because of the quirks of the Electoral Count Act, Georgia’s 16 Electoral College votes would go for Trump.“When you’re in this era of pervasive distrust, you start running through all these rabbit holes,” said Richard H. Pildes, a professor at New York University’s School of Law. “We haven’t had to chase down so many rabbit holes before.”Now, for the hard partThe easiest part in fixing the Electoral Count Act, according to half a dozen experts who have studied the issue, would be figuring out how Congress would accept the results from the states.There’s wide agreement on three points to do that:Extending the safe harbor deadline, the date by which all challenges to a state’s election results must be completed.Clarifying that the role of the vice president on Jan. 6 is purely “ministerial,” meaning the vice president merely opens the envelopes and has no power to reject electors.Raising the number of members of Congress needed to object to a state’s electors; currently, one lawmaker from each chamber is enough to do so.The harder part is figuring out how to clarify the process for how states choose their electors in the first place. And that’s where things get tricky.The states that decide presidential elections are often closely divided. Maybe one party controls the legislature while another holds the governor’s mansion or the secretary of state’s office. And while each state has its own rules for working through any election disputes, it’s not always clear what is supposed to happen.In Michigan, for instance, a canvassing board made up of an equal number of Republicans and Democrats certifies the state’s election results. What if they can’t reach a decision? That nearly happened in 2020, until one Republican member broke with his party and declared Biden the winner.Progressive Democrats will want more aggressive provisions to prevent attempts in Republican-led states to subvert the results. Republicans will fear a slippery slope and try to keep the bill as narrow as possible.King’s solution was to clarify the process for the federal courts to referee disputes between, say, a governor and a secretary of state, and to require states to hash out their internal disagreements by the federal “safe harbor date,” which he would push back to Dec. 20 instead of its current date of Dec. 8.The political obstacles are formidable, too. Still reeling from their failure to pass federal voting rights legislation, many Democrats are suspicious of Republicans’ motives. It’s entirely possible that Democrats will decide that it’s better to do nothing, because passing a bipartisan bill to fix the Electoral Count Act would allow Mitch McConnell, the Republican Senate minority leader, to portray himself as the savior of American democracy.Representative Zoe Lofgren, a California Democrat who heads the Committee on House Administration, has been working with Representative Liz Cheney, the Wyoming Republican, on a bipartisan House bill. But she stressed that their ambitions are fairly limited.“We’ve made clear this is no substitute for the voting rights bill,” Lofgren told us. “The fact that the Senate failed on that shouldn’t be an excuse for not doing something modest.”What to read tonightJill Biden, the first lady, told community college leaders that her effort to provide two years of free community college isn’t in Democrats’ social spending bill, Katie Rogers reports.Republican campaigns have intensified their attacks on Dr. Anthony S. Fauci, a trend that Sheryl Gay Stolberg described as representative of “the deep schism in the country, mistrust in government and a brewing populist resentment of the elites, all made worse by the pandemic.”Peter Thiel is stepping down from the board of Meta, according to its parent company, Facebook. Ryan Mac and Mike Isaac hear that Thiel, who has become one of the Republican Party’s largest donors, wants to focus his energy on the midterms instead.Chief Justice John G. Roberts joined the three liberal members’ dissent to a Supreme Court order reinstating an Alabama congressional map. A lower court had ruled that the map violated the Voting Rights Act, Adam Liptak reports.STATESIDEBallots being tabulated at the Maricopa County Recorder’s office in Phoenix on Nov. 5, 2020.Adriana Zehbrauskas for The New York TimesVoting rights push goes localArizona, as we’ve noted, has become a hotly contested battleground, and the two parties have clashed continuously over the rules that govern how elections can and should be held. Just last week, the Republican speaker of the State House spiked a bill that would have allowed the Legislature to reject election results it didn’t like.A new ballot initiative led by Arizonans for Fair Elections, a nonprofit advocacy group, would do the opposite: expand voter registration, extend in-person early voting and guard against partisan purges of the voter rolls, along with a host of other changes that groups on the left have long wanted.It would essentially overturn an existing law that was litigated all the way to the Supreme Court last year, resulting in a 6-3 decision favoring the Republican attorney general. Arizonans for Fair Elections expects to announce its plans on Tuesday.The move comes at a time of frustration for voting rights advocates, whose push for legislation to enact similar changes at the federal level ran into a wall of Republican opposition.Will the local approach fare any better? A citizens’ initiative that passed in 2000 established Arizona’s independent redistricting commission, so there’s a precedent. To get on the ballot this year, the group needs to obtain 237,645 valid signatures by July 7.“Our Legislature for many years has been trying to chip away at the right to vote,” said Joel Edman, a spokesman for the initiative. “We’re at a big moment for our democracy.”Is there anything you think we’re missing? Anything you want to see more of? We’d love to hear from you. Email us at onpolitics@nytimes.com. More

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      Overhaul of Electoral Count Act Will Pass, Manchin Says

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      Senators working to overhaul the law said recent revelations about former President Donald J. Trump’s efforts to overturn the 2020 election made their work even more crucial.WASHINGTON — Two senators working on an overhaul of the little-known law that former President Donald J. Trump and his allies tried to use to overturn the 2020 election pledged on Sunday that their legislation would pass the Senate, saying that recent revelations about the plot made their work even more important.In a joint interview on CNN’s “State of the Union,” Senators Joe Manchin III, Democrat of West Virginia, and Lisa Murkowski, Republican of Alaska, said their efforts to rewrite the Electoral Count Act of 1887 were gaining broader support in the Senate, with as many as 20 senators taking part in the discussions.“Absolutely, it will pass,” Mr. Manchin said of an overhaul of the law, which dictates how Congress formalizes elections.He said efforts by Mr. Trump and his allies to exploit “ambiguity” in the law were “what caused the insurrection” — the Jan. 6, 2021, attack on the Capitol. That misreading of the statute led to a plan by Mr. Trump and his allies to amass a crowd outside the Capitol to try to pressure Congress and Vice President Mike Pence, who presided over Congress’s official count of electoral votes, to overturn the results of the election.Ms. Murkowski said the rewrite could be expanded to include other protections for democracy, such as a crackdown on threats and harassment against election workers.“We want to make sure that if you are going to be an election worker,” Ms. Murkowski said, “you don’t feel intimidated or threatened or harassed.”A bipartisan group of at least 15 senators — which includes Mr. Manchin and Ms. Murkowski and is led by Senator Susan Collins, Republican of Maine — recently began discussions with another group that features top Democrats who have studied the issue for months. That group includes Senator Angus King, independent of Maine; Senator Amy Klobuchar, Democrat of Minnesota; and Senator Richard J. Durbin, Democrat of Illinois.Mr. King’s group last week released draft legislative text for a rewrite of the Electoral Count Act that would address deficiencies exposed by Mr. Trump’s plan. The bill would clarify that the vice president has no power to reject a state’s electors and ensure that state legislatures cannot appoint electors after Election Day in an effort to overturn their state’s election results.It would also give states additional time to complete legitimate recounts and litigation; provide limited judicial review to ensure that the electors appointed by a state reflect the popular vote results in the state; enumerate specific and narrow grounds for objections to electors or electoral votes; raise the thresholds for Congress to consider objections; and make it harder to sustain objections without broad support by both chambers of Congress.In an interview with The New York Times, Mr. King called his group’s draft “very nonpartisan” and said it included the input of conservative and liberal legal scholars.“Hopefully we can join forces and get a good bill,” Mr. King said of Ms. Collins’s group.The latest push to clarify the law follows a series of revelations about a campaign by Mr. Trump and his allies to try to overturn the 2020 election, including the surfacing of memos that show the roots of the attempts to use so-called alternate electors to keep Mr. Trump in power and the former president’s exploration of proposals to seize voting machines.On Friday, Mr. Pence offered his most forceful rebuke of Mr. Trump’s plan, saying the former president was “wrong” to insist that Mr. Pence had the legal authority to overturn the results of the election. Those comments came on the same day the Republican National Committee voted to censure two members of the party, Representatives Liz Cheney of Wyoming and Adam Kinzinger of Illinois, in a resolution that described the events of Jan. 6 as “legitimate political discourse.”Ms. Cheney and Mr. Kinzinger are the only Republican members of the special House committee investigating the Jan. 6 attack, which left more than 150 police officers injured and resulted in several deaths.The resolution drew criticism from some congressional Republicans on Sunday.Representative Michael McCaul, Republican of Texas, said on ABC’s “This Week” that he did “not agree with that statement — if it’s applying to those who committed criminal offenses and violence to overtake our shrine of democracy.”In an interview on NBC’s “Meet the Press,” Marc Short, Mr. Pence’s former chief of staff, said that “from my front-row seat, I did not see a lot of legitimate political discourse.”Mr. Short blamed Mr. Trump’s push to overturn the election on “many bad advisers who were basically snake-oil salesmen, giving him really random and novel ideas as to what the vice president could do.”He described being taken to a secure room in the Capitol with Mr. Pence on Jan. 6 as rioters stormed the building, some chanting, “Hang Mike Pence.” He said Mr. Trump and Mr. Pence did not talk that day.Mr. Short and another top Pence aide, Greg Jacob, recently testified before the committee, a step Mr. Pence’s advisers have hoped would stop the committee from issuing a subpoena for Mr. Pence. Representatives of Mr. Pence have been negotiating with the committee’s lawyers for months.“That would be a pretty unprecedented step for the committee to take,” Mr. Short said of a subpoena for the former vice president, adding that it would be “very difficult for me to see that scenario unfolding.”Emily Cochrane More

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      Are New Voting Bill Talks for Real or for Show?

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      Senators involved in the negotiations underway say the discussions are serious and substantive, but some Democrats remain wary.WASHINGTON — Senator Richard Blumenthal, Democrat of Connecticut, was finally closing in on a hard-fought agreement with Republicans on a gun safety measure, following a string of horrific shootings in 2019, when the talks suddenly collapsed.New plans in the House to impeach President Donald J. Trump meant that Republicans were no longer in the mood to compromise with Democrats on anything, and the emerging accord went the way of so many seemingly promising ones on Capitol Hill in recent years, stymied by Republicans who said they were willing to accept some sort of deal — just not that one.“The world has become so polarized that our Republican colleagues come so very close to closing a deal, but then they begin staring down the abyss of their base and they recoil,” said Mr. Blumenthal, who attributed the Republican recalcitrance to fear of a political backlash for any cooperation with Democrats.The same has been true for other politically charged issues where efforts at compromise have ended up going nowhere in Congress. Republicans initially seemed willing to engage on legislation addressing immigration and police misconduct, for example, only to abruptly pull back, blaming Democrats for what they called unreasonable demands or a refusal to take hard steps that might anger their liberal supporters.So as a rump group of senators in both parties has recently ramped up discussions aimed at reaching a compromise on voting legislation, leading Democrats who saw their far broader voting rights package stall in the Senate last week have been wary.They worry that the emerging legislation could be a distraction from the pressing issue their bill was meant to address — Republican voter-suppression efforts at the state level — and amount to little more than cover for Republicans who want to appear interested in protecting election integrity despite uniformly opposing Democrats’ voting rights bill.They have taken note that Senator Mitch McConnell, the Kentucky Republican and minority leader, has blessed the effort — a telltale sign, say Democrats who have learned to be endlessly suspicious of his motives, that it might go nowhere.The Democratic fear is that once the moment passes and attention shifts away from election law to spending issues and now a contentious Supreme Court nomination, the talks will fizzle and Democrats will be left with nothing to show for their voting rights drive, even as the 2022 midterms loom and the 2024 election is just over the horizon.But leaders of the talks that now include at least 16 senators divided between Republicans and Democrats say they are substantive, gaining momentum and could produce legislation that might prevent another Jan. 6-style confrontation by focusing on fixing the deficiencies in the 135-year-old Electoral Count Act.They point to the bipartisan infrastructure measure that many of the same lawmakers were able to produce last year as their model for negotiations, and as proof that compromise is still possible.“I’m encouraged by the fact that almost every day, someone calls me and asks to join our group,” said Senator Susan Collins, the centrist Republican from Maine and a leader of the compromise effort. She characterized its members, who met virtually this week, as ranging from “pretty conservative to pretty liberal.”“This is a serious, committed group of senators from both sides of the aisle,” she said in an interview. “This is not a surface effort.”Aiding the outlook for the talks is the fact that Senator Chuck Schumer, Democrat of New York and the majority leader, is also now encouraging them. He is taking what one ally described as a wait-and-see attitude after initially lashing out at the potential compromise as a ruse to undercut the Democratic voting rights package.A separate group that includes Senator Amy Klobuchar, Democrat of Minnesota and chair of the Rules Committee, and Angus King, the Maine independent, is drafting comparable legislation.Virtually all Democrats back the idea of fixing the Electoral Count Act, which lays out the ceremonial process by which Congress makes an official count of the presidential election results to confirm the victor, to guard against its being exploited in the way that Mr. Trump and his allies attempted to do so.But they caution that it is no substitute for their proposals, which focus on countering efforts to make it harder for minorities to vote and restoring parts of the landmark Voting Rights Act.“I don’t think anybody is against fixing the piece,” Senator Chris Van Hollen, Democrat of Maryland, said about the electoral vote counting process. “But nobody should pretend that this in any way solves the bigger issues regarding the attack on our democracy.”Ms. Collins, however, says that the focus on how presidential electoral votes are tallied should be the aim of any new voting legislation as a direct response to the assault on the Capitol last January by Mr. Trump’s supporters seeking to interfere with the tally.“That the Democrats didn’t put anything on the Electoral Count Act in their 735-page bill is astounding to me given the link to Jan. 6,” Ms. Collins said.Understand the Battle Over U.S. Voting RightsCard 1 of 5Why are voting rights an issue now? 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