Momentum builds for overhaul of rules governing electoral count
By Carl Hulse
Determined to prevent a repeat of the Jan. 6, 2021, assault on the Capitol, backers of an overhaul of the federal law governing the count of presidential electoral ballots pressed lawmakers Wednesday to repair the flaws that President Donald Trump and his allies tried to exploit to reverse the 2020 results.
“There is nothing more essential to the orderly transfer of power than clear rules for effecting it,” Sen. Susan Collins, R-Maine, one of the lead authors of a bill to update the 135-year-old Electoral Count Act, said Wednesday as the Senate Rules Committee began its review of the legislation. “I urge my colleagues in the Senate and the House to seize this opportunity to enact the sensible and much-needed reforms before the end of this Congress.”
Backers of the legislation, which has significant bipartisan support in the Senate, believe that a Republican takeover of the House in November and the beginning of the 2024 presidential election cycle could make it impossible to make major election law changes in the next Congress. They worry that, unless the outdated statute is changed, the shortcomings exposed by Trump’s unsuccessful effort to interfere with the counting of electoral votes could allow another effort to subvert the presidential election.
“The Electoral Count Act of 1887 just turned out to be more troublesome, potentially, than anybody had thought,” said Sen. Roy Blunt of Missouri, the senior Republican on the rules panel. “The language of 1887 is really outdated and vague in so many ways. Both sides of the aisle want to update this act.”
But despite the emerging consensus, lawmakers also conceded that some adjustments to the proposed legislation were likely given concerns raised by election law experts. In attempting to solve some of the old measure’s problems, experts say, the new legislation could create new ones.
“It needs to be fixed,” Norm Eisen, an election and ethics expert and former special counsel to the House Judiciary Committee, said of the Electoral Count Act after his testimony Wednesday. “But it needs to be fixed correctly.”
And in the House, a group of lawmakers led by members of the special committee investigating the Jan. 6 attack were drafting their own bill, which was expected to have major differences from the one agreed upon by a bipartisan group of senators.
The Senate proposal would more precisely define the role of the vice president in overseeing the counting of the ballots during a joint session of Congress, making clear that the task is strictly ministerial. That is a direct response to Trump’s failed attempt to pressure Vice President Mike Pence into rejecting election results for certain states to prevent Congress from certifying Joe Biden’s victory.
The bill would also raise the threshold for objections to the counting of electoral ballots, raising it to one-fifth of the membership of both chambers. That is a substantial increase from current law, which allow just one member of the House and Senate acting together to lodge an objection and force a vote on whether to accept a state’s results.
The legislation also would designate the governor or another clearly specified state official as the sole person able to submit a slate of a state’s presidential electors to avoid competing sets of electors turning up.
That, too, was a response to what happened after the 2020 election, when Trump and his allies developed a plan to put forward false slates of electors who would vote for Trump despite his failure to win the popular vote in their states.
Some critics of the bill argued that more changes were needed to protect the integrity of the electoral count. They have called for a longer period for judges to review state election certifications than the six days allowed in the bill. They also want a tighter definition for the “extraordinary and catastrophic events” that would allow state officials to extend Election Day. And they have pressed to make it even more difficult for lawmakers to lodge challenges to the electoral results, with clearly specified grounds that such objections would have to cite.
House officials expect to make their proposal public within weeks. The two chambers would have to agree on a final compromise if one were to become law.
Some House Democrats are calling for any final bill to include broader voter protections proposed after some states enacted new limits on voter access following the 2020 election. But those plans cannot clear the Senate, where they have already been blocked repeatedly by Republican filibusters.
“Can we do a lot more?” asked Sen. Joe Manchin of West Virginia, the lead Democratic author of the legislation. “Absolutely. People want a lot more. But the bottom line is, this does the job it’s supposed to do to prevent a Jan. 6 from ever happening again.”
Despite some differences over the details, all those who testified Wednesday and those on the committee agreed on the need for an election law overhaul and said they were moving toward approval either before the November election or in a lame-duck session after the midterm voting.
“The House Administration Committee actually put out a report that has some recommendations that are similar to ours,” Collins said. “So I’m very hopeful that we can work together with the House and get this done.”
Sen. Amy Klobuchar, D-Minn., chair of the Rules Committee, noted that as the leaders of the panel, she and Blunt were responsible for completing the electoral vote count in the early morning hours of Jan. 7, 2021, walking over broken glass and other damage done by the Capitol marauders to finish a job begun hours before.
“The will of the American people could have been overturned,” she said. “It is our job to ensure this never happens again, no matter who is charge or what happens.”