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Bipartisan efforts to reform the ambiguous and antiquated Electoral Count Act of 1887, and thus help prevent a repeat of the chaos we saw on Jan. 6, 2021, are gaining steam on Capitol Hill.
The bipartisan Electoral Count Reform Act (ECRA) would clarify that the vice president’s role in certifying electors in Congress during the Jan. 6 joint session is ministerial, and raise the threshold for members of Congress to challenge electors. It would remove potentially exploitable language about a “failed election,” and take steps to facilitate a single and definitive slate of electors from each state — including by designating a state’s governor as the state official responsible for submitting their state’s slate of electors to Congress (unless otherwise specified in state law prior to the election).
The proposal would also, importantly, work to prevent states from changing their election laws after an election has already taken place.
These detail-oriented steps should be welcomed by anyone who supports an orderly and peaceful transfer of power — and who respects the will of the voters rather than prioritizing their own desired electoral outcome.
Republican Sen. Susan Collins led the bipartisan group of 16 senators who developed the Electoral Count Reform Act. She and Democratic Sen. Joe Manchin of West Virginia presented that proposal to the Senate Rules Committee on Wednesday. Independent Sen. Angus King is a member of that committee, and first released a discussion draft of ECA reform legislation back in February with other members of the Democratic caucus. King told the BDN editorial board in January that he had offered draft language to the bipartisan group.
“Nothing is more essential to the survival of a democracy than the orderly transfer of power and there is nothing more essential to the orderly transfer of power than clear rules for effecting it,” Collins told members of that committee Wednesday as they began consideration of the bipartisan proposal.
“This is not a partisan issue. This is a mechanical issue,” King said Wednesday. “This is a rules issue that involves how our government should work, no matter who’s in charge.”
So far, members of both parties look receptive to the proposed legislation. Sen. Amy Klobuchar, the Democratic chair of the Rules Committee from Minnesota, thanked Collins’ bipartisan group for its work and recognized King as well. Sen. Roy Blunt of Missouri, the panel’s top Republican, said “this is clearly something that we shouldn’t let carry over into another election cycle, and get this done this year.”
With nine Republican cosponsors, the bill already looks very close to clearing the 60-vote threshold for overcoming a filibuster. Republican Sen. Chuck Grassley of Iowa, who like Blunt was not part of the bipartisan group of cosponsors, said on Wednesday that he is likely to support the measure. That is a very good thing.
In addition to growing political support, legal experts have spoken plainly and strongly about the need for this ECA update.
“The specific text of the [reform bill] has significant and broad bipartisan buy-in. It is neither a partisan effort nor a token bipartisan effort. While many may speak generically about reforming the ECA, the specific language and mechanics matter, and securing consensus on these topics is not easy. The [reform bill] is impressive for that effort alone,” University of Iowa law professor Derek Muller, a witness called by Republicans on the Rules Committee, said in his testimony on Wednesday. Muller advised the group of senators who drafted the bill.
“The bottom line is that this is a good bill. It is an impressive amount of clarity and sophistication in a mere 19 pages of statutory text. And it is sufficient to handle the pressing challenges in presidential elections, for this moment and for the future. It takes a nineteenth century law into the twenty-first century,” Muller added.
Sen. Shelley Moore Capito, a Republican from West Virginia and cosponsor of the reform bill who also serves on the Rules Committee, pointed to the urgency of passing the bill and said that “we need to button this up before the end of the year.”
Congress moves along at its own speed, but we’d suggest this effort should be wrapped up quickly. There seems to be strong bipartisan support coalescing around this effort. But in today’s overall political climate, that can change in an instant.
The committee, and Congress as a whole, should work deliberately to get this much-needed reform bill across the finish line, sooner rather than later.