Smart politics, and smart legislation — at least in its current form.

Late yesterday, Mitch McConnell announced his support for a new Senate bill updating the 1887 Electoral Count Act statutes that ended up on center stage on January 6, 2021. Before that, though, McConnell managed to corner Democrats into a “modest” reform of the ECA after thwarting their efforts to federalize all elections in this session. The new bipartisan bill will make the ceremonial role of the Vice President and Congress more explicit and head off the stupid challenges that have taken place in nearly every presidential election since Bush v Gore:

The Senate bill already has public support from 11 Republican senators, enough to overcome the chamber’s 60-vote filibuster threshold, if all 50 members of the Democratic caucus vote yes. Negotiations over the measure have been led by Sens. Susan Collins (R., Maine) and Joe Manchin (D., W.Va.).

The legislation would raise the threshold for lawmakers to object to the electoral count to one-fifth of each chamber. The House bill would raise the threshold higher, to one-third.

Both thresholds are higher than the current law, which only requires one House member and one senator to raise an objection that both chambers then have to debate and vote on.

The Senate bill would clarify that the vice president is merely tasked with a ministerial role of counting the votes publicly and doesn’t have the power to determine the outcome of the election.

In his speech announcing his support, McConnell pointed out that the problems with the existing ECA go all the way back to the outcome of the 2000 election, when Democrats pulled stupid ECA stunts to protest the outcome:

“Congress’s process for counting the presidential electors’ votes was written 135 years ago. The chaos that came to a head on January 6th of last year certainly underscored the need for an update. So did Januaries 2001, 2005, and 2017; in each of which, Democrats tried to challenge the lawful election of a Republican president.

“Obviously, in every case, our system of government won out. The Electoral Count Act ultimately produced the right conclusion: Certainty, finality, and the transfer of power to the winning candidate. But it’s clear the country needs a more predictable path to that outcome.

“This bipartisan bill does not rashly replace current law with something untested. It keeps what’s worked well and modestly updates what has not.

Hopefully, the new ECA will put an end to those stunts. More importantly, though, it should remind everyone that Congress does not validate or approve Electoral College results. The president and vice president are elected by the states, not the people or Congress. Once the states certify their election results and deal with any challenges to those results in the manner set by the individual states, the only constitutional role Congress has is counting the Electoral College ballots. Only when states send two competing slates of electors — only when states do so, not individuals asserting the role of electors — does Congress have any authority to question which ballots to count. That’s under the existing ECA as well as this new updated version.

Put simply, all of these challenges have been cheap and cynical stunts, especially when conducted by people who claim to be constitutionalists. Congress never had the authority to ignore states’ certified electors. Ironically, Democrats’ federalization of elections would have blurred that line even further, which is why McConnell insisted on blocking their bills and working on a strengthened ECA that protects the states’ role in elections.

And, as it turns out, it’s also pretty popular, although not so much with Republicans:

A majority of voters favor making it harder to override future election results, according to a new POLITICO/Morning Consult poll. Fifty-two percent of respondents said it should be harder for Congress to override presidential election results, and 53 percent said it should be more difficult for state governments to do so, the poll shows. …

The support to change the electoral count law also garnered bipartisan and independent support in the poll. A majority of Democrats supported both making it harder for Congress and state governments to override election results, at 66 percent and 65 percent, respectively.

More than 50 percent of independents supported making it harder for state governments to override results, and 45 percent supported it when it came to Congress. Support among Republican voters was lower: 41 percent when it comes to state governments, and 42 percent when it comes to Congress.

There’s a lot more to write about from this Morning Consult poll, so watch for a later post. For this issue, though, it’s clear that McConnell is trying to thread a needle — getting his caucus on the right side of a popular issue while making it as narrow as possible. It will also lay to rest Congress’ ghosts of January 6, which Republicans could have used a little earlier in the cycle, but still works in this moment as well.