State of Play

On Jan. 19, the Senate failed 48-52 to change its filibuster rules, which would have been required in order to pass elections and voting reform. Senate Democrats have attempted to consider several pieces of voting rights legislation over the past year including the For the People Act (S.1) in June 2021; the Freedom to Vote Act (FTVA) (S.2747) in October 2021; and the John Lewis Voting Rights Advancement Act (VRAA) (S.4) in November 2021. To date, these efforts have yielded no meaningful engagement from Senate Republicans. Democrats therefore attempted to use existing Senate rules to break the Republican filibuster on debate of voting rights legislation. The standing rules of the Senate allow the body to bypass the typical 60-vote threshold to invoke cloture on a Motion to Proceed when taking up a message from the House of Representatives. Therefore, upon receipt of a House message, the Senate was able to begin consideration of the House message following a simple majority vote. However, to end debate and ultimately pass the bill, 60 votes were still required. The Senate voted 49-51 to stop Democrats from cutting off debate, forcing a later vote, which also failed by the same margin, on the Senate rule change that would have allowed for a simple majority to pass the legislation.

To begin the process, the House Committee on Rules met on Jan. 12 to consider reporting the NASA Enhanced Use Leasing Extension Act of 2021 (H.R.5756), which was used as a shell bill for the voting rights legislation. The Committees on Rules and House Administration then considered a Manager’s Amendment that contained both the FTVA and the VRAA, which self-executed upon floor consideration of the underlying rules. Following the Committees’ consideration, the full House moved to consider the legislation as amended, voting 220-203 along party lines on Jan. 13. Upon passage, the bill was transmitted to the Senate. While the Senate was able to consider the voting rights legislation, there was insufficient support to overcome the 60-vote threshold for passage. Senate Democratic leadership and President Biden continued to urge Democratic senators to change the filibuster rules to allow a simple majority to pass the legislation. However, moderate Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), ultimately joined all 50 Republicans in voting against such a change. Specifically, the rule change would have reinstated the talking filibuster to pass the legislation by a simple majority vote following a lengthy debate.

Sen. Sinema cemented her opposition to changing the Senate rules in a floor speech on Jan. 13, just before President Biden spoke to the Senate Democratic Caucus to discuss the need to pass legislation to protect the right to vote and the integrity of U.S. elections. Sinema said the filibuster protects the country “from wild reversals on federal policy” when control of Congress changes hands. She expressed support for the voting rights bills, but said she “will not support separate actions that worsen the underlying disease of division infecting our country.” This led President Biden to cast doubt on whether the voting rights legislation can pass through the upper chamber, stating, “I hope we get this done…The honest-to-God answer is: I don’t know if we get this done.” He added, however, that he will continue to try as long as he is in the White House and engaged beyond his time as president.

 

Electoral Count Act of 1887

Now that Senate Democrats have failed to pass voting rights legislation through the procedures outlined above, it is possible the Senate will consider bipartisan changes to the Electoral Count Act of 1887 (ECA) (Pub.L. 49–90, 24 Stat. 373), a move that President Biden signaled an openness to in his Jan. 19 news conference. Unlike the three aforementioned Democratic bills, Senate Minority Leader Mitch McConnell (R-KY) has signaled he may be open to reforming the ECA, saying, “It obviously has some flaws. And it is worth, I think, discussing.” Currently, a bipartisan group including Sens. Susan Collins (R-ME) and Joe Manchin are looking at ECA reform and several other proposals to prevent election subversion; Sen. Angus King (I-ME) is leading an ECA reform effort and is close to having a finished bill; members of the House Select Committee on the January 6 Attack are working on an ECA reform bill; and the House Administration Committee is expected to soon release an ECA proposal.

The ECA was passed to avoid the constitutional crisis of 1876, which resulted in the smallest winning margin in Electoral College history—185 to 184. The Act outlines how Congress formally counts the Electoral College results, including by delegating to each state the “final determination” of any election disputes within the state, under specified circumstances. It sets out procedures and deadlines for the states to follow in resolving disputes, certifying results, and sending such results to Congress. If states follow these “safe harbor” standards and each state’s  governor properly submits one set of electoral votes, the Act states that that “final” determination “shall govern.”

Under the Act, Congress is responsible for resolving only a narrow class of disputes, for example, if a governor has certified two different slates of electors or if a state fails to certify its results under the Act’s procedures. Congress is also permitted to reject votes for other specific defects, such as ministerial error, if an elector or candidate is ineligible for office, or if the electoral college votes are not “regularly given.” Under the Twelfth Amendment, the Vice President, in their role as President of the Senate, opens the electoral certificates. The Act clarifies the Vice President's limited role in the count, stating that both houses can overrule the Vice President's decision to include or exclude votes and, even if the chambers disagree, the governor's certification, rather than the Vice President, breaks the tie.

Since its inception, commentators have questioned whether the Act can bind a future Congress, as the Constitution gives Congress the power to set its own procedural rules. Furthermore, in 1887, one commentator described the law as “unintelligible” due to a single 275-word sentence in the 809-word statute. More recently, commenters have stated that the law “invites misinterpretation” with repetitive and contradictory provisions.

Next Steps

The Senate will likely continue efforts to reform the ECA after this week’s efforts to pass broader voting rights legislation failed, with the goal of making it harder for lawmakers to derail election certifications—Senate Minority Whip John Thune (R-SD) made clear that any bipartisan agreement would have to be separate and after Democrats wrap up their discussions on trying to change the legislative filibuster. While many Democrats view Republicans’ interest in voting rights reform as insincere and a distraction from their broader goals of expanding ballot access, Sen. Thune said “there have been some expressions of interest” among Republicans in narrowing Congress’ or the Vice President's ability to change the election results. Sens. Shelley Moore Capito (R-WV) and Mitt Romney (R-UT) have also said there is some interest in looking for ways to ensure the counting process cannot be corrupted. It is unclear at this point what reforms could garner enough bipartisan support to pass both chambers, but moderates on both sides of the aisle are continuing to express optimism that something could pass this year.

Beyond reforming the ECA, President Biden indicated in his Jan. 19 news conference that he may use executive orders to reform the voting and election process, though he did not go into detail about his strategy. He highlighted the importance of making the case to all Americans, warning of potential state subversion of election results by choosing alternative electors. In a statement from the White House following the Jan. 19 votes, both President Biden and Vice President Harris again vowed to continue fighting to pass federal legislation to secure the right to vote for all Americans, and to ensure all Americans are guaranteed to have their vote counted in free and fair elections.