Republican Sen. Susan Collins and Democrat Joe Manchin made the case on Wednesday for overhauling the 1800s-era Electoral Count Act, pushing for quick passage of a bipartisan compromise that would make it harder for a losing candidate to overturn legitimate results of a presidential election.
Proposals from their group of 16 senators — nine Republicans and seven Democrats — are a response to former President Donald Trump and his allies pushing courts, state legislatures and Congress to somehow overturn his 2020 loss to President Joe Biden. Trump’s efforts culminated in the violence of Jan. 6, 2021, when hundreds of his supporters pushed past police and broke into the Capitol as Congress was certifying the results.
An update to the electoral law is “something our country desperately needs,” Manchin said Wednesday, testifying at a Senate hearing on the bill. “The time for Congress to act is now.”
Manchin and Collins, who introduced a series of proposals to reform the law last month along with 14 other senators, are pushing for passage of the legislation before the end of the congressional session in January. The bills could face a harder path after November’s midterm elections if Republicans take over the House, where Democrats are leading a separate effort to revise the law.
“This is something we shouldn’t carry over into another election cycle,” said Missouri Sen. Roy Blunt, the top Republican on the Senate Rules Committee who has been supportive of the effort.
The Electoral Count Act of 1887 governs the counting and certification of electoral votes in presidential elections and has long been criticized as arcane, vaguely written and vulnerable to abuse. Those fears were realized after the 2020 contest when Trump’s allies worked to exploit those weaknesses, pushing states to put forward alternate slates of electors and pressuring Vice President Mike Pence to use his ceremonial role in the congressional joint session on Jan. 6 to object to the results or delay certification.
The bipartisan group of senators has worked for months to find agreement on a way to revamp the process, eventually settling on the series of proposals introduced last month.
The legislation would add a series of safeguards to the electoral count, increasing the thresholds for challenging results so state or federal officials can’t exploit loopholes to advocate for a preferred candidate.
It would reinforce that the vice president’s role over the electoral count is “solely ministerial,” with no power to change the results. It would make clear that Congress can only accept the one legitimate slate of electors from each state and make it harder for members of either party to object to the results. And it would strike an outdated law that could allow some state legislatures to override the popular vote.
“Nothing is more essential to the survival of a democracy than the orderly transfer of power,” said Sen. Collins,, of Maine, who testified alongside Manchin, of West Virginia. “And there is nothing more essential to the orderly transfer of power than clear rules for effecting it.”
It is unclear how quickly the Senate might act when it returns from its August break in the fall. Both Senate Majority Leader Chuck Schumer and Senate Republican leader Mitch McConnell have signaled support, and the legislation is expected to have enough backing to overcome any objections and pass in the 50-50 Senate.
Roadblocks await in the House, however, where some Democrats would like the bill to do much more. The House panel investigating the Jan. 6 insurrection and the House Administration Committee, have been working on similar proposals to each other and promise to release them soon.
While overwhelmingly supportive of the current Senate proposal, legal experts who testified at the hearing identified some potential sticking points. They recommended some tweaks, including better defining the specific grounds that members of Congress can use when objecting to a state’s electors during congressional certification and making it even harder for state legislators to delay or override a vote by declaring a “failed election.”
The Senate compromise would already amend an 1845 law allowing states to declare a “failed election,” only permitting a state to modify election timing in “extraordinary and catastrophic” circumstances, but the experts said that might not be enough. They said such circumstances should be spelled out — a natural disaster that prevents many people from reaching the polls, for example, — and not simply what state lawmakers may consider a “catastrophic” election result.
While recommending changes, the panel of experts — including Bob Bauer, who was White House counsel in the Obama administration, and Brookings Institution Fellow Norm Eisen — said the need for action is urgent.
“Jan. 6 has passed, but the danger has not,” said Eisen, who served as a lawyer for the House Judiciary Committee during Trump’s first impeachment.
The proposals introduced by the bipartisan group last month also include also include bolstered security for state and local election officials, who have faced violence and harassment, including doubled penalties for people who threaten or intimidate election officials.
Some of those election officials testified at a separate Senate Judiciary hearing on Wednesday, asking for Congress to amend federal law to include strong penalties on those who threaten or harm anyone involved in election administration — and to limit access to individuals seeking personal information of election officials.
New Mexico Secretary of State Maggie Toulouse Oliver said threats to election integrity are growing by the day, noting the recent case in her state of a county commissioner who refused to certify the results of a primary.
“For the election officials and volunteer poll workers that our elections depend on, I fear that threats and harassment will cause them so much stress and uncertainty that they will simply give up the work for voters,” she said.
(AP)
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One Response
No update will help if the entire act is unconstitutional, as John Eastman persuasively argues. The update will be just as unconstitutional.
The 12th amendment gives Congress NO ROLE WHATSOEVER in deciding challenges to the voters. Congress can’t just pass an act arrogating that power to itself, as it did in 1877.
The problem is that the 12th amendment is very poorly drafted. It only says the electors’ votes “shall be counted”, but it doesn’t say who shall count them! Both houses of congress are to witness the count, the vice president is to chair the meeting, but who is in charge of the count itself? Nobody, it seems! That’s why in 1877 the vice president claimed the right to decide which votes to count, while congress claimed it had the right. Neither position has any support in the constitution’s text.
The resolution of the 1877 crisis should have been a constitutional amendment. Instead it was passed as an act of congress, which means nothing, because congress has no authority to amend the constitution. Hence we still have the same question as we did then.