Democrats are voicing skepticism over Senate Minority Leader Mitch McConnell’s (R-Ky.) openness to discussing election law changes, warning that he’s trying to distract from filibuster reform efforts.
McConnell’s decision to open the door this week to reforming an 1887 Electoral College law comes as Democrats are trying to cut a deal with Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) on broader voting rights reforms that will require them to change the legislative filibuster.
Though top Republicans say there’s genuine interest within the conference for looking at the law — which outlines how Congress formally counts the Electoral College results, like it did on Jan. 6 — the timing immediately sent up red flags for top Democrats and activists.
Senate Majority Leader Charles Schumer (D-N.Y.), during an interview with MSNBC’s Rachel Maddow, said he viewed McConnell’s comments as an effort to head off discussions with Manchin and Sinema, who are the two Democratic holdouts on changing the 60-vote legislative filibuster.
“I think this is a fake. I think it’s a way to try and get the two senators that we have who are not on board to go for something that won’t change the horrible, voracious change in the balance of power that will allow elections to slam things in the directions of Republicans in a dramatic way, in an unfair way, in an un- — small “D” — democratic way,” Schumer said.
Schumer took another shot at the idea of making reforms to the Electoral Count Act during a floor speech saying that the offer was “unacceptably insufficient and even offensive.”
Sen. Raphael Warnock (D-Ga.), who has been deeply involved in the voting rights negotiations, called GOP talk of reforming the Electoral Count Act a “distraction.”
“We need to pass voting rights and we need a comprehensive response to this huge and concerted effort across the country to make it difficult for people to vote. What good is the certification if I don’t get the cast my vote in the first place?” Warnock said.
Though some Republican scholars have long floated making changes to the Electoral Count Act, McConnell generated headlines this week when he opened the door to revisiting the 1887 law saying that reforms were “worth discussing.”
“Wholly aside from all the other things they’re discussing, this is something that’s worth discussing,” McConnell said.
There’s bipartisan, bicameral interest in making changes to the law, which was enacted after a disputed 1876 election. Dozens of Republicans tried unsuccessfully to challenge key battleground states on Jan. 6, 2021, and then-President Trump waged a public and private pressure campaign to try to get then-Vice President Mike Pence to throw out the results. The GOP efforts fell short, and Pence rejected Trump’s overture, but the count was disrupted for hours after a pro-Trump mob breached the Capitol.
Rep. Zoe Lofgren (D-Calif.), who chairs the House Administration Committee, is trying to put together bipartisan legislation and Sen. Angus King (I-Maine) is also drafting potential reforms. A bipartisan Senate group, including Manchin and Sinema, also held a call, convened by Sen. Susan Collins (R-Maine), to talk about elections and the Electoral Count Act.
But top Democrats and the White House are trying to put the kibosh, for now, on talk of reforming the 1887 law, arguing that the focus needs to stay on broader election and voting rights reforms that are currently being pursued by Democrats.
“That is not a substitute for the protections that are included in the Freedom to Vote Act and the John Lewis Voting Rights Advancement act. That is why our focus is on those,” said White House press secretary Jen Psaki.
She added that the Electoral Count Act “is not a replacement, it is not a substitute, and our focus remains on those two pieces of legislation.”
Asked about talk of reforming the Electoral Count Act, Sen. Dick Durbin (D-Ill.) noted that “Schumer is obviously not a fan.”
Democrats are currently pursuing election and voting legislation after Republicans blocked two sweeping election bills and a third bill named after the late Rep. John Lewis (D-Ga.) that would have strengthened and expanded the 1965 Voting Rights Act.
Though both Sinema and Manchin have signed on to the Lewis legislation, the bills have gone nowhere in the Senate because of the 60-vote legislative filibuster. No Republicans voted for the election bills — the For the People Act and Freedom to Vote Act, respectively — and Sen. Lisa Murkowski (Alaska) was the only Republican to vote to start debate on the voting rights legislation.
Schumer has vowed to force a vote on the Senate rules change by Jan. 17 if Republicans once again block the bills, as they are expected to. Democrats haven’t landed on a proposal but are discussing a range of options including implementing a talking filibuster, where opponents could delay a bill for as long as they could hold the floor but it could ultimately pass by a simple majority, or a carveout that would exempt voting rights legislation from the 60-vote hurdle while keeping it intact for other issues.
But to pass changes to the filibuster, Democrats would need total unity from their 50-member caucus, something they don’t yet have. Both Sinema and Manchin have reiterated their support as recently this week for having a supermajority requirement for legislation and have been wary of the carve-out idea backed by many of their colleagues.
They’ve also both endorsed bipartisan negotiations on the Electoral Count Act reforms, helping fuel concerns from Democrats and activists that McConnell’s trial balloon is meant to sink the Democratic-only talks on filibuster reform and broader voting legislation.
Tiffany Muller, the president of End Citizens United and Let America Vote Action Fund, added that McConnell saying changes to the 1887 law were “worth discussing” was a “classic McConnell stall tactic.”
Ezra Levin, the co-executive director of the progressive group Indivisible, warned that McConnell was “working to outmaneuver Democrats.”
“The Electoral Count Act is a fine reform, but it would do nothing to reverse or prevent gerrymandering or voter suppression,” he said. “If McConnell can convince Manchin and Sinema to go down this path, that would successfully sideline efforts to pass the big, consequential democracy bills that combat voter suppression.”
This story was updated at 10:13 a.m.