This morning, the Senate Rules Committee conducted a hearing entitled, “The Electoral Count Act: The Need for Reform.” The Committee focused on the 135 year old law which vaguely describes how Electoral College votes are counted after each presidential election.
For over a century, the Electoral Count Act (“ECA”) was an uncontroversial section of U.S. Code. However, it became the statutory focus of the attempted insurrection on January 6, 2021. While a violent mob stormed the U.S. Capitol in an effort to force Vice President Pence to utilize the vague language of the ECA to set aside the results of the 2020 election, 147 members of Congress voted to overturn plainly valid election results in furtherance of this plot.
Since January 6th, a broad consensus has formed that the ECA needs to be re-written to clarify a number of its ambiguous and outdated provisions and to strengthen some of its most vulnerable procedures. The core goal of reform is to ensure that no one–not the Vice President nor rogue state actors–has the power to overturn or set aside presidential election results.
Two weeks ago, after months of negotiations, a group of 9 Republican and 7 Democratic senators released a bipartisan bill to narrowly address this concern. Notably, the group of senators produced two bills (the Electoral Count Reform and Presidential Transition Improvement Act and the Enhanced Election Security and Protection Act) but only ECA-related text will be discussed herein.
FairVote is hopeful, as this reform achieves a great deal of what is necessary to discourage another January 6th: it clarifies the limited role of the Vice President; establishes a more reliable procedure to ensure that Congress only receives a single, legitimate slate of electors; greatly increases the threshold for members of Congress to challenge submitted Electoral College votes; creates special federal courts to adjudicate the issuance and transmission of certificates of appointment of electors; and emphasizes that states officials must follow the laws in place on election day. All of these are significant improvements over a dangerous status quo, and the Senate should embrace the substance of these reforms as a serious and essential first step to ECA reform.
Of course, Congress can and should continue to improve the bill through hearings and other legislative processes, such as today’s proceedings. Even supporters of the current proposal have observed that some provisions could be phrased more clearly, deadlines may need to be extended to allow for judicial processes to run their course, and the issuance and transmission provisions could encourage even greater real-time transparency through the public posting of official documents at each step of the process.
Further, Congress would do well to consider in these bills any recommendations produced by the House Select Committee on the January 6 Attack. That Committee has engaged in important fact finding which may promulgate additional reforms assumed at ensuring such political violence does not happen again. Any such recommendations deserve attention and consideration, whatever they may be.
Finally, while the reforms contemplated by the bipartisan Senate bill are vital and absolutely should be enacted, the bill by no means fixes our democratic processes or our electoral institutions. In many ways this ECA reform focuses exclusively on what happened on January 6th, 2021 and loses sight on what could happen on January 6th, 2025. As other analysts have pointed out, ensuring votes are correctly transmitted from each state to Washington, DC does not ensure that eligible voters are able to register to vote, that registered voters are able to cast ballots, and that ballots are fairly counted. The Leadership Conference on Civil and Human Rights made this important point in their support of ECA reform, and FairVote echoes that sentiment. FairVote continues to support the John Lewis Voting Rights Advancement Act and other efforts to combat vote suppression and dilution.
The bipartisan Senate bill marks a vital step forward to ensure that the presidential election is based on an accurate Electoral College vote count, and it should be broadly supported. However, future bills or changes to these bills are necessary for Congress to ensure that such vote counts truly reflect the will of the voters.