A bipartisan group of 16 senators on Wednesday released legislation that would clarify an 1887 law that President Donald Trump and his allies tried to use as part of their attempt to overturn the 2020 election results.
Although the senators said the work of the House committee investigating the Jan. 6 attack on the Capitol did not influence their talks or impact the timing, the legislation was released as the committee has laid out evidence showing how Trump and his allies tried to exploit the vagueness of the 19th-century law, the Electoral Count Act.
Trump pressured Vice President Mike Pence to reject votes for Joe Biden from certain states by recognizing informal slates of electors for Trump instead, but Pence disagreed that he had the legal authority to do so and worked to certify Biden as the winner of the election.
The proposal, spearheaded by Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.), also would make it more difficult for Congress to raise an objection to state results in a presidential election. Under the 19th-century law, one House member and one senator are needed to raise an objection. The proposal would increase that objection threshold to one-fifth of the House and the Senate.
It also clarifies how a presidential candidate can raise concerns about a state’s election, with the creation of a three-judge panel and an expedited path to the Supreme Court, an issue that the senators struggled to come to agreement on.
Attempt to clarify the presidential transition
In a separate piece of legislation, the senators attempt to deter violence against poll workers by doubling the fines for people who intimidate or threaten election workers. The measure also clarifies how the Postal Service is to handle election mail.
To the chagrin of many on the left, the senators did not delve into issues such as voter access, an issue that has become partisan. During this Congress, Senate Democrats tried to pass expansive changes to voting rules that they said were needed to combat voting restrictions in GOP-controlled states. But their efforts were stymied first by Republican opposition and then, earlier this year, by Sens. Kyrsten Sinema (D-Ariz.) and Manchin, who objected to changing the Senate filibuster rule to pass the voting package, frustrating Democrats and many election watchdogs.
“We have developed legislation that establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President,” the bipartisan group of senators said in a statement. “We urge our colleagues in both parties to support these simple, commonsense reforms.”
The senators also argue their proposal solidifies the notion that state electors must represent the popular-vote winner by striking part of an 1845 law that says a state legislator can override the state’s popular vote by declaring a “failed election,” which they argue is not defined.
A state can appoint just one set of presidential electors, and only the governor — or an official designated in the state’s constitution or laws — could submit the electors to Congress.
After the 2020 election, groups of rogue electors backing Trump in a number of states tried to submit their slates to Congress to be counted instead of the legitimate electors won by Biden.
Prospects for passage
The bill’s chances of passing the Senate are unclear. It would need the support of 10 Republicans, and nine were part of the bipartisan negotiating group.
Senate Majority Leader Charles E. Schumer (D-N.Y.) and Senate Minority Leader Mitch McConnell (R-Ky.) have given the negotiators a long leash — a sign the legislation is likely to garner the support of leaders in both parties. Collins said she has been in contact with Schumer and McConnell on the bill.
McConnell told reporters Tuesday that the Electoral Count Act “needs to be fixed,” but did not indicate if he would endorse the new plan.
In addition to Collins and Manchin, members of the negotiating group are Sens. Rob Portman (R-Ohio), Sinema, Mitt Romney (R-Utah), Jeanne Shaheen (D-N.H.), Lisa Murkowski (R-Alaska), Mark R. Warner (D-Va.), Thom Tillis (R-N.C.), Chris Murphy (D-Conn.), Shelley Moore Capito (R-W.Va.), Ben Cardin (D-Md.), Todd C. Young (R-Ind.), Christopher A. Coons (D-Del.), Lindsey O. Graham (R-S.C.) and Ben Sasse (R-Neb.).
After the proposal’s release, Sen. Amy Klobuchar (D-Minn.), who chairs the Senate Rules Committee, announced she would hold a hearing on the Electoral Count Act in “the coming weeks.” Klobuchar was kept abreast of the negotiations, and this is a sign that the Senate is moving forward on the proposal.
The measure also addresses the presidential transition by allowing candidates who don’t concede to receive federal transition resources when an election is “reasonably in doubt,” according to a summary of the bill. But once the election results are certified on Jan. 6, only the candidate certified as the winner can continue receiving the funds.
Experts on elections are in agreement that the current law is outdated and confusing.
“The next presidential election could be one of the most contentious in history, and it should be decided by voters, not partisan politicians,” Trevor Potter, founder and president of the Campaign Legal Center, said in a statement. “While there is much more work to be done to protect elections and voters at the state and federal level, this bill provides critical safeguards for the results of presidential elections.”
Trump’s refusal to concede and effort to overturn the election results were unique in U.S. history and strained the system for ensuring a peaceful transfer of power.
“We saw some remarkable political courage by state officials, including governors and state secretaries of state, last time, and I hope we see that again, but we certainly can’t count on it,” said Matthew Seligman, a Yale Law School fellow who has studied the Electoral Count Act’s shortcomings. “So if Congress doesn’t pass this law, I am terrified.”
But some election watchers, particularly on the left, said that while addressing the ECA is important, it does not address the broad reforms that are needed.
“Whatever text they come up with should be not seen as any kind of comprehensive solution to the problems of democracy,” said Daniel I. Weiner, elections and government director at the Brennan Center for Justice. “It should be the first step in the process where the rest of Congress should weigh in on.”
Correction: An earlier version of this story incorrectly attributed a quote from Trevor Potter, founder and president of the Campaign Legal Center, to Adav Noti, vice president of the Campaign Legal Center.