Since June, Senate Minority Leader Mitch McConnell and his Republican caucus have filibustered three separate Democratic voting rights bills, refusing to permit even a floor debate on the legislation as GOP-led states intensify their assault on the franchise.
But with Senate Democrats gearing up for yet another attempt to strengthen federal voter protections, McConnell is signaling a willingness to cooperate with the majority party on a far more narrow reform effort—one that would entail tweaks to the obscure Electoral Count Act.
"Our message to Senate Dems is simple: Don't get distracted!"
"It obviously has some flaws," McConnell said Wednesday of the 1887 statute, which sets out procedures for the counting of electoral votes and gives members of Congress the ability to dispute the results of presidential contests. Nearly 150 Republican lawmakers voted to overturn the results of the 2020 election, just hours after the January 6 attack on the U.S. Capitol last year.
Reforms to the Electoral Count Act are "worth, I think, discussing," the Kentucky Republican added.
Voting rights advocates immediately sensed danger—and urged Democrats not to play along with the GOP leader.
"It's a trap!" the progressive organization Indivisible warned in an email to supporters late Wednesday as momentum behind Electoral Count Act reform continued to build, fueled by the work of right-wing organizations such as the American Enterprise Institute and Cato.
Earlier Wednesday, both Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.)—whose refusal to support filibuster reform is a major reason for Democrats' failure to pass voting rights legislation—voiced support for the push to alter the Electoral Count Act.
"At least they've got people talking now," said the West Virginia Democrat. A bipartisan group convened by Sen. Susan Collins (R-Maine) has reportedly begun discussing a plan to reform the Electoral Count Act.
A spokesperson for Sinema, meanwhile, said the Arizona senator "continues to believe bipartisan action is needed to strengthen our democracy and has been in constant contact with colleagues in both parties on this and other potential areas of common ground."
But voting rights campaigners and experts fear that growing focus on the Electoral Count Act will distract from more fundamental efforts to end voter suppression, partisan gerrymandering, and other anti-democratic practices that Republicans are deploying in states across the country ahead of the pivotal 2022 midterms.
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, wrote in a series of tweets earlier this week that while changes to the Electoral Count Act are worth pursuing, they would be no substitute for the passage of robust federal voter protections.
"We must not deny the truth: that voter suppression schemes create obstacles designed to frustrate voting and drive down turnout among Black, Latino, Asian American, student, and disabled voters," wrote Ifill. "It is an affront to democracy and a denial of full citizenship that must be addressed."
Indivisible co-executive director Ezra Levin expressed similar concerns in a statement Wednesday evening.
"Who on this earth believes Mitch McConnell woke up this morning and decided to start caring about democracy? Nobody," Levin said. "McConnell is working to outmaneuver Democrats."
Reforming the Electoral Count Act "would do nothing to reverse or prevent gerrymandering or voter suppression," he continued. "If McConnell can convince Manchin and Sinema to go down this path, that would successfully sideline efforts to pass the big, consequential democracy bills that combat voter suppression."
"Our message to Senate Dems is simple: Don't get distracted!" Levin added. "Pass the damn Freedom to Vote Act and John Lewis [Voting Rights Advancement Act], and don't fall for McConnell's tricks."
In a new petition, Indivisible urges Senate Democrats to "add reforms to the Electoral Count Act as an amendment to the Freedom to Vote Act to ensure these reforms are passed ALONGSIDE the other bills."
Thus far, it appears that the Senate Democratic leadership does not intend to back Electoral Count Act reform as a standalone alternative to the Freedom to Vote Act and other voting rights legislation.
“The Electoral Count Act [reform] says you can rig the elections anyway you want and then we'll count it accurately," Senate Majority Leader Chuck Schumer (D-N.Y.) told Politico in an interview.
If passed, the bill would establish Election Day as a legal public holiday, expand early and mail-in voting, prohibit partisan gerrymandering, and strengthen campaign finance regulations, among other reforms.
But because no Republicans support the bill, the legislation has failed to reach the 60-vote threshold required under the current filibuster rule.
While Schumer is vowing to pursue changes to the upper chamber's rules if Republicans filibuster the Freedom to Vote Act a second time, Manchin has declined to endorse specific filibuster reforms.
"Being open to a rules change that would create a nuclear option—it's very, very difficult," Manchin told reporters earlier this week, referring to the procedure by which Democrats could alter Senate rules without needing Republican votes.
"It's a heavy lift," he added.
Sean Eldridge, founder and president of Stand Up America, noted in response that "Mitch McConnell and Senate Republicans reformed the filibuster to confirm three Trump Supreme Court nominees with simple majority votes."
"If 51 votes is good enough for a lifetime confirmation to the highest court in our land," Eldridge wrote on Twitter, "it should be enough to protect our freedom to vote."