Why two Democratic lawyers are concerned about the Electoral Count bill

Why two Democratic lawyers are concerned about the bill to revise the Electoral Count Act

The Senate will hold a hearing Aug. 3 on the bill that Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) unveiled last week to address the vulnerabilities in the law revealed by former president Donald Trump’s failed attempts to remain in power after he lost the 2020 election.

The long-awaited legislation would update the Electoral Count Act, the ambiguous and confusing 1887 law that governs the process of certifying presidential elections. It’s a compromise between nine Republicans and seven Democrats that its backers hope will win enough support to overcome a filibuster.

But not everyone is on board.

Two leading Democratic lawyers have raised concerns about the bills since its text was made public on Friday.

Both of them — Marc Elias, a leading Democratic election lawyer, and Norm Eisen, a former White House ethics lawyer in the Obama administration who advised House Democrats during Trump’s first impeachment — said in interviews on Friday that they support efforts to reform the ECA. But Elias said the current bill is flawed enough that passing it as is might not be worth it.

“I’m not sure it’s better than nothing,” Elias said. “I’m not sure. I hope it doesn’t come to that.”

Elias’ concerns are rooted in the part of the bill that lays out how governors certify which candidate won the state. The bill states that the certificate of ascertainment naming the candidate’s electors to the electoral college “shall be treated as conclusive.”

“When something is conclusive, it means that there is no room for contesting it,” Elias said. “The Supreme Court has said that in other contexts in the past.”

Consider Pennsylvania, where Doug Mastriano, the Republican nominee for governor, attended Trump’s “Stop the Steal” rally and later hired one of the lawyers who tried to help Trump overturn the 2020 election to work on his campaign.

“If he wins, then he alone in 2024 will have the authority to issue a certificate of ascertainment as to which candidates’ electors go to the electoral college,” Elias said. “And that means that even if Joe Biden gets more votes than his opponent in 2024, Doug Mastriano could just certify the Republican candidate as the winner.”

Eisen, meanwhile, worries that the bill doesn’t define the “extraordinary and catastrophic events” that would allow states to change voting hours or delay Election Day, among other concerns.

“I’m not suggesting that [the bill] was not a thoughtful effort,” Eisen said. “But I think some of these changes are not quite correctly executed and actually could create more uncertainty in the counting process and the risk of manipulation.”

Legitimate worry, or “outlandish” interpretation?

There are plenty of election lawyers who don’t share Elias and Eisen’s concerns.

Bob Bauer, a former White House counsel in the Obama administration, has praised the draft bill. Five law professors who specialize in election law wrote that the bill “would be a major improvement over the antiquated Electoral Count Act.” And Benjamin Ginsberg, a longtime Republican election lawyer who served as counsel to George W. Bush’s campaign during the Florida recount in 2000, said he has some minor issues with the bill but that it’s a “consensus bill that moves the legislative process forward.”

He urged Congress to pass it before another presidential election strains the system.

“Whenever the ECA comes to play again, it will be, by definition, a time of great national uncertainty,” Ginsberg said. “So you need a coherent law to guide the process.”

Matthew Seligman, a Yale Law School fellow who’s spent years studying the ECA, said he agreed with Elias that the bill doesn’t allot enough time — only six days — to litigate challenges to a governor’s determination of which candidate won his or her state. But he said some of Elias and Eisen’s concerns were overblown.

Elias, for instance, argued that federal courts might be reluctant to overturn governor’s certifications because the bill describes them as “conclusive.”

“The statutory interpretation that Marc is worried about is so outlandish that it would lose unanimously, I think, in every federal court in the country,” Seligman said.

Waiting for the House bill

The Senate bill won’t be the last word on the matter.

Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), both of whom sit on the committee investigating the Jan. 6 attack, have been working on their own bill updating the ECA. And the House Administration Committee, which oversees federal elections and which Lofgren chairs, has been looking at the ECA since Trump tried to take advantage of the vagueness of the law in 2020. 

After senators released their proposal last week, Cheney and Lofgren put out a statement suggesting that they’d put forward their own proposal rather than just accepting the Senate’s. 

Down to the wire in the Senate

In Congress this week, most of the action is in the Senate, where the agenda includes passing the chips manufacturing bill, a drug pricing proposal, an updated treaty with NATO and federal protections for same-sex marriage. 

The latest version of the chips bill — which includes $52 billion for manufacturing subsidies, tax credits for semiconductor factory expansion, improvement or creation, and billions of dollars for the National Science Foundation — is expected to pass the Senate on Wednesday.

But first, the Senate will hold a cloture vote Monday night, which will need the support of 60 senators. Since the first procedural vote on the measure won 64 votes, the bill’s advancement is not in question. 

Programming note: Leigh Ann will interview Sens. Todd C. Young (R-Ind.) and Kyrsten Sinema (D-Ariz.) for Across the Aisle on Washington Post Live Tuesday at 4:10 p.m. 

Senate Democrats want to hold a vote on the House-passed bill that would offer protections for same sex marriage, interracial marriages and repeal of the Defense of Marriage Act, a 1996 law that defined marriage as a union between a man and a woman.

Sen. Tammy Baldwin (D-Wis.) and Sinema worked over the weekend with Senate Majority Leader Chuck Schumer (D-N.Y.) to secure the votes to pass the measure, according to an aide familiar the negotiations. 

The question is if there are 10 Republicans who will vote for the bill. Five have indicated they would: Sens. Thom Tillis (R-N.C.), Susan Collins (R-Maine) (who co-sponsored the bill with Baldwin), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) (who is working on gaining Republican support) and Ron Johnson (R-Wis.). 

Pass or fail, it’s good politics for Democrats. If it doesn’t gain the support of enough Republicans, the GOP will be blamed for blocking it, and if it passes, Democrats can celebrate a bipartisan win on an issue that is very important to the base.

Prescription drug pricing

Senate Democrats are also hoping to move on their bill that would allow the government to negotiate drug prices in Medicare and extend Affordable Care Act subsidies for two more years in a very-scaled down version of the once-sweeping Build Back Better legislation. 

Democrats hope to hear from the Senate parliamentarian Monday on whether the drug pricing part of the bill complies with the Senate’s reconciliation rules.

If they can move forward, the parameters of the debate were previewed in a closed-door meeting with the parliamentarian last Thursday when Republicans, according to a senior Democratic aide, argued against capping drug price increases to inflation and imposing an excise tax on drug companies that refuse to negotiate. 

“Senate Dems believe [these components] are politically popular and dangerous for Republicans to attack,” the aide said.

The Senate is working to move quickly to vote on an updated NATO treaty that would allow Finland and Sweden to join the alliance, a direct response to Russia’s invasion of Ukraine. The measure will win the support of nearly all senators once it is on the floor — but first it must get to the floor, which just one senator can slow down. 

We are also watching a number of hearings this week. The Senate Judiciary Committee will hold a hearing on the decriminalization of marijuana. As we reported last week, Senate Democrats unveiled comprehensive legislation. 

The House Oversight and Reform Committee is also expected to hold a hearing on the gun manufacturing industry. It was rescheduled…