Kansas, Missouri Republicans voted to overturn the 2020 election. Will they oppose reform?

One of the Republican House members in Kansas who voted to overturn the 2020 presidential election expressed openness to passing a bill that would make it harder for lawmakers like him to do so in the future.

Rep. Ron Estes, a Republican who represents the Wichita region, said Tuesday he is open to bipartisan reform to the Electoral Count Act, a nearly 150-year-old law that determines how Congress certifies presidential elections.

But he isn’t in support of a new House bill that would make those changes, saying it was a partisan bill intended to drive a political narrative before the midterm elections.

“My concern right now is that the House version was really just created in a vacuum by the group that’s working with the January 6 committee,” said Rep. Ron Estes, R-Kansas. “And it doesn’t have bipartisan support.”

The House bill is a product of collaboration between Rep. Zoe Lofgren, a California Democrat, and Rep. Liz Cheney, a Wyoming Republican who lost her leadership in the House Republican Conference and her August primary after she was one of 10 House Republicans to vote to impeach then-President Donald Trump for incitement of insurrection. Both serve on the House committee investigating the January 6, 2021 insurrection.

Across the country, there are efforts seeding doubt about the validity of the U.S. elections process and a small effort to push “Independent State Legislature Theory,” the idea that elected state lawmakers have significant power over federal elections, potentially giving them ability to overturn election results in their states for a desired outcome.

Election law experts associated with both political parties have urged Congress to update the electoral count law, which they say is ambiguous and creates a risk that someone would attempt to use it to overturn the will of the voters in a presidential election.

“The problem is that the 1887 Act has some major ambiguities in it that we now know, people are willing to exploit to undermine the process of recognizing the lawfully cast and counted votes in the states,” said former federal Judge Michael McConnell, who teaches constitutional law at Stanford University.

A similar proposal has been moving slowly in the Senate, but it appears have more bipartisan appeal than the House version.

Rep. Jake LaTurner, a Kansas Republican whose district will include Wyandotte County beginning next year, noted the Senate bill appears to have more Republican support and called it “less prescriptive” than the House version, but he said that he wanted to review the legislation. Rep. Tracey Mann, a Republican who represents western Kansas, said he wanted to read the bill and then directed questions to his office, which did not respond to questions.

All three Kansas Republicans in the House voted to overturn the 2020 presidential election.

None of the six Republican House members from Missouri responded to questions about whether they supported Cheney’s bill, the Senate bill or reforming the Electoral Count Act. All of them — except Rep. Ann Wagner, who is from St. Louis County — voted to overturn the 2020 presidential election.

As the Senate’s bipartisan effort on the same issue moves slowly through the chamber, House Speaker Nancy Pelosi quickly set up a vote on Cheney and Lofgren’s bill, which differs from the Senate legislation both in substance and its likelihood of gathering bipartisan support.

The House bill — which puts boundaries on what lawmakers can object to and raises the threshold for when an objection to the election goes to a vote — contains language that makes it difficult to get support from Republicans.

It would put every member of the House on the record on whether they pin the blame for the January 6 attack on the U.S. Capitol on Trump, a little more than a month before the midterm elections.

“If we don’t do it in a bipartisan fashion, it’s not going to be something that is good for the country,” Estes said.

Reps. Sharice Davids, D-Kansas, and Emanuel Cleaver, D-Missouri, who both say they will support an attempt to reform the Electoral Count Act, said they were reviewing Cheney and Lofgren’s bill instead of giving it their instant backing.

“Rep. Davids believes as Members of Congress, she and her colleagues have an obligation to protect our democracy,” said Zac Donley, a spokesman for Davids. “She is looking closely at the different versions of the bill, but continues to support bipartisan efforts that safeguard elections and ensure every vote counts.”

Davids, a Johnson County Democrat, is up for reelection in one of the most competitive House seats in the country.

The Senate bill moves slowly

The Senate has not matched the sense of urgency felt by some constitutional and elections experts, who are concerned by how any perceived loopholes in the antiquated act may be used to seed doubt about the validity of an election or could be used in an attempt to overturn results all together.

In contrast to the House bill, the Senate bill is co-sponsored by 20 senators, 10 of whom are Republicans.

“Our bill is backed by election law experts and organizations across the ideological spectrum,” Sens. Susan Collins, R-Maine, and Joe Manchin, D-West Virginia, said Wednesday. “We will keep working to increase bipartisan support for our legislation that would correct the flaws in this archaic and ambiguous law.”

It will be discussed and potentially amended in the Senate Rules Committee next week, but Senate Majority Leader Chuck Schumer has not offered specifics about when he wants to bring the bill to the floor for a vote.

“It’s something we’d like to get done and we’re going to try to figure out the best way to get it done,” Schumer told a reporter earlier this month.

There may be a small window of opportunity. Should Republicans win control of the House in the midterm elections, it may be more difficult for a version of the bill to get a vote in the lower chamber. That would risk going into the 2024 presidential election without reforming a law that members of Trump’s campaign attempted to exploit.

A poll commissioned by the nonpartisan Campaign Legal Center, a nonprofit that advocates for reform of the Electoral Count Act, found that 62% of Americans are in favor of reforming the law.

The Electoral Count Act, passed in 1887, was written in response to the 1876 presidential election, where Samuel Tilden won the popular vote but lost disputed electoral votes in several southern states. It resulted in a deal that Rutherford B. Hayes would become president if he ended reconstruction in the south and an attempt at ensuring that Congress has a formal counting process so they couldn’t tailor the results to a specific outcome.

The vague legislation was at the heart of a last-ditch effort by members of former President Donald Trump’s campaign to overturn the 2020 presidential election. The House committee charged with investigating the attack on the Capitol on January 6, 2021 presented evidence earlier this year that Trump officials were working with legislatures to submit false slates of electors, and that Trump himself pushed former Vice President Mike Pence to prevent the certification of the election.

But McConnell, a retired federal judge who was appointed by President George W. Bush, said the need for reforming the law goes beyond Trump. He noted that lawmakers had objected to the results of both of Bush’s elections and to Trump’s election in 2016. Bush’s 2004 election was even taken to a roll-call vote of both chambers of Congress — similar to Biden’s election in 2020 — though only one senator and 31 representatives objected.

“It simply doesn’t make any sense for something as important as the counting of votes for president of the United States to have these kinds of ambiguities hanging out there,” McConnell said.

Both pieces of legislation make it more difficult for lawmakers to object to the election. In previous elections, it only took one member of the House of Representatives and one Senator to object to the electors of the state to prompt a roll call vote of all the members of the U.S. House and Senate.

The Senate bill would raise that threshold to one-fifth of the Senate and one-fifth of the House. The House bill would raise the threshold to one-third of the Senate and one-third of the House.

Josh Douglas, an election law professor at the University of Kentucky, said he believed the higher the threshold the better.

“It’s needed because not only was there the insurrection on January 6, but it was fueled by this ability of just one house member on one senator to object to a state’s electoral college votes, without any basis for the objection,” Douglas said.

The two bills seek to create a basis for when lawmakers can object to the election, requiring any objections to focus on the states’ electors rather than any issues of voting in the states, the way it has been previously used by Democrats concerned about voter suppression and Republicans concerned about fraud. Under the new legislation, lawmakers would only be able to object if an elector was ineligible to cast a vote, or the electors were selected on the wrong day.

The House version also allows members to object to the certification of electoral college votes if the states votes went to someone who “engaged in insurrection or rebellion” against the U.S. government, which would potentially serve as a way lawmakers could object to a Trump victory in 2024.

The bills also ensure that state legislatures can’t override their own voters and that the Vice President only has a ministerial role in counting electoral votes, matching the way Pence interpreted the law while under pressure from Trump to delay the certification of the election to help their campaign overturn the results.

Amid claims that the House bill was more of a political move than an honest attempt at reforming the law, Cheney’s office sent out praise the bill had received from Republicans. One of the statements was from former Judge Michael Luttig, who testified in front of the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol, that democracy is “on a knife’s edge.”