I agree entirely with John McCormack and Ben Sasse that it is good to see Electoral Count Act reform coming to a vote in Congress, bad to see it stuffed into the omnibus bill, and shameful on the part of Chuck Schumer that he obstructed all efforts to get a stand-alone bill to the Senate floor where it had sufficient bipartisan support to pass.
Based on the current text of the bill, which buries the ECA provisions on pages 1,934 through 1,954 of a 4,155-page tome, it appears that the Senate’s version of ECA reform has been adopted (for example, the bill now requires one-fifth, not one-third, of Congress to raise an objection: a higher standard than under current law but lower than the House version), and the criticisms of the bill lodged in National Review‘s September editorial have been resolved. The bill can no longer be read to create any new federal rights to sue, either in federal court or anywhere else. To the contrary, it provides:
This subsection— (A) shall be construed solely to establish venue and expedited procedures in any action brought by an aggrieved candidate for President or Vice President as specified in this subsection that arises under the Constitution or laws of the United States; and (B) shall not be construed to preempt or displace any existing State or Federal cause of action.
Thus, the bill neither adds to nor eliminates any current bases for legally contesting election results; it simply provides rules for how federal courts should hear such lawsuits (via a specially constituted three-judge court) and how they should be expedited (with an immediate right to petition the U.S. Supreme Court for review). This ought to remove Republicans’ objections about an ECA bill that could potentially open new avenues for contesting elections in the courts — in particular, the House bill’s asymmetrical creation of a right to challenge the failure to count legal votes while creating no right to challenge the counting of illegal votes.