The Senate bill to reform the 1887 Electoral Count Act got a big boost in the Rules Committee Tuesday, when the panel approved the bipartisan Electoral Count Reform and Presidential Transition Improvement Act. The vote was 14-1, with the one being Texas insurrectionist Sen. Ted Cruz. Who else would it be?
Cruz obliquely endorsed the Big Lie to justify his opposition. “The biggest reason this bill is problematic,” he said, “is that it is intended to decrease the ability of the United States Congress to address the very real problem of voter fraud.” Cruz didn’t say that there was fraud in the 2020 election and that President Joe Biden isn’t the legitimate president, but he skirted it.
He didn’t repeat the Big Lie but instead the perennial lie that underlies it: Voter fraud is real and so rampant it actually affects elections. “Today’s Democrats have made, I think, a really cynical political decision that voter fraud, they believe, helps elect more Democrats, and so the more fraud, the better,” Cruz said. “What this bill does is decrease the ability of Congress to address instances of fraud when it occurs.” None of which is real. It’s Ted Cruz. Real doesn’t matter.
He should be happy with the Senate bill. If that’s the one that becomes law, his path to the White House theoretically remains open. The House bill has a provision that would make participating in an insurrection a permissible basis for rejecting electors for a presidential candidate. Cruz was among the 147 members, including eight senators, who objected to counting electors after after the violent attack on the Capitol. That might not be participating in an insurrection, but it’s sure as hell endorsing it.
The bill will pass, if not now then in the lame duck session after the election. That’s because Minority Leader Mitch McConnell finally broke his silence and spoke out in support of it in committee. Both he and Majority Leader Chuck Schumer are members of the Rules Committee and both voted to advance the bill out of committee.
“I strongly support the modest changes that our colleagues in the working group have fleshed out after months of detailed discussions. I’ll proudly support the legislation, provided that nothing more than technical changes are made to its current form,” McConnell said on the Senate floor Tuesday. “The chaos that came to a head on Jan. 6 of last year certainly underscored the need for an update” to the Electoral Count Act, McConnell continued.
Both bills make it explicit that the vice president has only a ceremonial role in the electoral count process, and can’t overrule anything. In the House bill, objections to electors have to be made by a full one-third of each of the two chambers in order to be heard. The Senate made that one-fifth of members. The current law allows just one House and one Senate member to object. The House bill goes a little further in clarifying parts of the old law—like what’s a “failed election”—and in laying out the legal process open to candidates to ensure hostile governors comply with the law’s deadlines and processes.
The House bill passed last week, with just nine Republicans supporting it. The Senate bill will get a lot more GOP support. What happens next is still to be determined—will there be a House-Senate conference to reconcile the differences in the bill? Will the House just take the Senate bill to make sure the law gets done? And when will any of that happen? At this point, it is almost certainly going to be after the November midterms.
Right now it’s unclear when the Senate will pass it. The last few days left for legislative work this week will be consumed with making sure the government funding bill is wrapped before Friday at midnight, the shutdown deadline. The only way it could be considered this week would with unanimous consent to pass it without first having a cloture vote—there just isn’t time to go through the normal process. Unanimous consent won’t happen because Ted Cruz.
And as of Wednesday, no one knows for sure if the Senate is even coming back before the election. They’ve got two weeks of work at the Capitol on the October schedule, but the House will be gone and there’s an election. Schumer and McConnell haven’t yet said what they’ve agreed to on coming back next month. They probably won’t.
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