By Theresa Opeka
Sen. Thom Tillis, R-N.C., is among a bipartisan group of 16 senators that have proposed to reform the Electoral Count Act of 1887. Sen. Susan Collins, R-ME, and Sen. Joe Manchin, D-WV, led the negotiations that introduced two proposals which include legislation to reform and modernize the Electoral Count Act of 1887 to ensure that the electoral votes tallied by Congress accurately reflect each state’s vote for President.
The senators hope the legislation will prevent a recurrence of riots that took place on January 6, 2021, when some supporters of then President Donald Trump called for the decertification of the 2020 presidential election.
“From the beginning, our bipartisan group has shared a vision of drafting legislation to fix the flaws of the archaic and ambiguous Electoral Count Act of 1887,” the senators said in a joint statement. “Through numerous meetings and debates among our colleagues, as well as conversations with a wide variety of election experts and legal scholars, we have developed legislation that establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President. We urge our colleagues in both parties to support these simple, commonsense reforms.”
In addition to Tillis, Collins, and Manchin, the senators involved in the bipartisan negotiations include Rob Portman R-OH, Kyrsten Sinema D-AZ, Mitt Romney R-UT, Jeanne Shaheen D-NH, Lisa Murkowski R-AK, Mark Warner D-VA, Chris Murphy D-CT, Shelley Moore Capito R-WV, Ben Cardin D-MD, Todd Young R-IN, Chris Coons D-DE, Ben Sasse R-NE, and Lindsey Graham R-SC.
In developing the bills, the senators received input from state election officials, as well as from an ideologically diverse group of election experts and legal scholars, including the American Law Institute. Rules Committee Chairwoman Amy Klobuchar, D-MN, and Ranking Member Roy Blunt, R-MO, also provided helpful insight.
“This is a more moderate approach than what Democrats were trying to push unilaterally,” said Dr. Andy Jackson, Director, Civitas Center for Public Integrity, John Locke Foundation. “It amounts to a technical correction of the Electoral Count Act, which is why it enjoys bipartisan support,”
The first bill, Electoral Count Reform and Presidential Transition Improvement Act, has provisions that would reform and modernize the Electoral Count Act of 1887 to ensure that electoral votes tallied by Congress accurately reflect each state’s vote for President.
The Electoral Count Reform Act provision would identify each state’s governor as the one empowered to submit the state’s slate of electors in order to certify election results. It also affirms the role of the vice-president as solely ministerial and “that he or she does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”
It also raises the threshold to lodge an objection to electors to at least one-fifth of the members of both the House of Representatives and the Senate. Currently, only a single member of both chambers is needed to object to an elector or slate of electors.
In addition, it strikes a provision of an archaic 1845 law that could be used by state legislatures to override the popular vote in their states by declaring a “failed election” – a term that is not defined in the law. Instead, this legislation specifies that a state could move its presidential election day, which otherwise would remain the Tuesday immediately following the first Monday in November every four years, only if necessitated by “extraordinary and catastrophic” events.
The Presidential Transition Improvement Act section would promote the orderly transfer of power by providing clear guidelines for when eligible candidates for President and Vice President may receive federal resources to support their transition into office.
The second bill, Enhanced Election Security and Protection Act, has the following provisions. The Enhanced Penalties to Protect Our Elections Act would double the penalty from no more than one year to no more than two years in prison under federal law for individuals who threaten or intimidate election officials, poll watchers, voters, or candidates.
Postal Service Election Improvement Act would improve the handling of election mail by the U.S. Postal Service and provide guidance to states to improve their mail-in ballot processes.
The Election Assistance Commission Reauthorization section would reauthorize the Election Assistance Commission for 5 years and require the EAC to conduct cyber security testing as part of its testing and certification process for voting systems. The EAC, an independent agency that helps states improve the administration and security of federal elections, was established by the Help America Vote Act of 2002.
The Election Records Protection Act would clarify that current law requires electronic election records be preserved. It would also increase the existing maximum penalties for individuals who willfully steal, destroy, conceal, mutilate, or alter election records from $1,000 to $10,000 and from up to one year in prison to up to two years in prison. In addition, it would make it illegal to tamper with voting systems.
Senate Rules Committee Chair Klobuchar, D-MN said in a statement that the committee will hold a hearing in the coming weeks on the proposed legislation.