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Voting rights legislation and proposed changes to the filibuster have failed to advance in the U.S. Senate. Depending on your political leanings, you might view this as either a danger to democracy itself or a victory in the face of reactionary overreach.
We have a different perspective. Opportunity for agreement and progress remains. After months of Democrats and Republicans talking past each other on election reform, or hardly talking at all, this moment might present a sliver of a chance for the usual suspects of pragmatic dealmaking to rally first around areas of solid mutual agreement, and to potentially build that out into broader areas.
Said another way: In the push to ensure accessible and secure elections for all Americans, after several failed attempts to advance other legislation, lawmakers looking for consensus need to start somewhere.
In this case, it appears that a first step could be the Electoral Count Act of 1887, the arcane statute governing the congressional process of counting electoral votes for president. Former President Donald Trump tried to exploit some ambiguity in this law and overturn his 2020 election loss, with disastrous consequences last Jan. 6. Thankfully, Vice President Mike Pence and Congress ultimately rejected this dangerous effort. But that defense of the democratic process never should have been necessary. The Electoral Count Act absolutely should be updated to take any ambiguity out of the equation.
We may sound like a broken record, but we still believe both Maine Sens. Susan Collins and Angus King can help chart this narrower path forward.
“If there remains any path forward on making changes to how we protect the Electoral College process and how we ensure a free and fair vote, I’m open to the conversation,” Democratic Sen. Chris Coons of Delaware said in early January, as reported by Politico.
Coons’ comments transport us back to April of last year, when the mild-mannered Delawarean ruffled some feathers in the debate over infrastructure funding by saying what seemed obvious to us: that Democrats should first work with Republicans on areas of agreement before trying to do things themselves through the budget reconciliation process.
That approach, and months of negotiation, eventually led to the successful bipartisan infrastructure deal. Perhaps that success can be replicated with election reform.
“Senator Collins is leading a bipartisan group of more than a dozen Senators committed to producing a consensus bill,” Collins spokesperson Annie Clark said in a statement last week. “The group has identified some areas of focus, such as the Electoral Count Act, the Election Assistance Commission, [Help America Vote Act] funding, new protections for elected officials from harassment and unwarranted removal, and some other issues.”
That group is meeting Monday afternoon, Clark said.
“This is an effort that this group takes very seriously,” Clark added. “While they are not locked into a particular time frame, they are also committed to drafting a thoughtful bill as quickly as possible.”
In an interview with the Bangor Daily News editorial board last Thursday, King noted that he had not yet been part of the newest bipartisan group efforts, but is willing to be. King said he and his staff have been working on draft Electoral Count Act reform language since last year that he has offered to the bipartisan group. He called that reform “necessary, but not sufficient because it doesn’t really deal with the other issues that the voting rights bills dealt with” while adding that it could become a vehicle to address other issues as well.
“But, hey, it looks like it’s something we can get done and we should get done,” King said. “If we can get some bipartisan interest, and as I say, it’s possible that we can broaden it slightly to include some things where there is general agreement.”
We hope that bipartisan talks about the Electoral Count Act and other potential areas of agreement can serve as a reset of sorts that leads to election reform of substance.
Democrats should bring their sweeping rhetoric back down to earth. The fate of democracy does not depend on election day becoming a national holiday (though it could be a good idea). People can disagree on the need for certain voting and ethics reforms without being aligned with the shameful segregationist legacies of Bull Connor or George Wallace.
And Republicans should follow up on an invitation from Chief Justice John Roberts, whose 2013 majority opinion in Shelby v. Holder left a hole in the Voting Rights Act when it struck down the formula used to determine which jurisdictions need to get pre-clearance from the Department of Justice before changing their election laws. In that same opinion, Roberts made it clear that Congress could make updates to address this.
Reasonable people can disagree on how to develop a new formula to best fill that hole, but in years past, Republicans and Democrats have agreed through their votes that requiring pre-clearance ahead of time for jurisdictions with a history of racial descrimination is a reasonable and necessary part of protecting voting rights in America. We hope that legacy can be continued in any ongoing negotiations.
On election reforms, Democrats and Republicans both need to start with the low-hanging fruit, like the Electoral Count Act, and hopefully build from there. Some will surely call all of this both-sides-ism. We call it reality.