CATO: Senators Announce Electoral Count Reform Act of 2022

[DEAD7]

Senators Announce Electoral Count Reform Act of 2022​

By Andy Craig

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The Senate’s bipartisan working group on election law reforms, led by Sen. Susan Collins (R‑ME) and Joe Manchin (D‑WV), today unveiled their long‐awaited deal on a variety of issues including the Electoral Count Act, the law at the center of the casting and counting of Electoral College votes every four years.

In addition to Collins and Manchin, the working group also includes Rob Portman (R‑OH), Kyrsten Sinema (D‑AZ), Mitt Romney (R‑UT), Jeanne Shaheen (D‑NH), Lisa Murkowski (R‑AK), Mark Warner (D‑VA), Thom Tillis (R‑NC), Chris Murphy (D‑CT), Shelley Moore Capito (R‑WV), Ben Cardin (D‑MD), Todd Young (R‑IN), Chris c00ns (D‑DE), Ben Sasse (R‑NE), and Lindsey Graham (R‑SC).

At Cato, my colleagues and I have been working on the Electoral Count Act, including analysis of particular provisions, meetings with policymakers, and a recent policy analysis outlining our overall conclusions and providing a model template with a section by section set of recommendations.

From the description released, the proposed “Electoral Count Reform Act of 2022″ covers the most important points, and reflects broad consensus among the scholars and organizations across the political spectrum. These changes include a process for ensuring only a single conclusive set of votes is sent by each state, expedited judicial review by a three‐judge panel to handle possible rogue state officials, a higher threshold to raise objections in Congress, and clarifying the “failed elections” provision to ensure that it only covers extreme natural disasters. Between concerns that this bill would be too narrow and only make cosmetic changes at the behest of Republicans, versus prior Democratic plans that went too far and were overcomplicated, this announcement strikes a happy medium: a bill that is broad in scope but simple and conservative in substance.

The status quo Electoral Count Act, as we saw in 2020, is a ticking time bomb and an invitation to a constitutional crisis. This announcement is a major step forward in fixing that problem. It should be a top priority for every member of Congress who takes seriously their oath to defend the Constitution.

 

[Domingo Halliburton]

Is this going to lose like 57-43 in the senate?

 

[OfTheCross]

I'm glad it's proposed but I'm not confident it will pass.

I'll wait and see.

Anything less than 100 - 0 vote will be scary to me

 

[OfTheCross]

The Electoral Count Reform Act Unpacked

Read the latest by Democracy Docket.

www.democracydocket.com

How did Trump try to exploit the ECA?​

In the aftermath of the 2020 election, Trump and his allies used the ambiguities of the ECA to bolster their arguments that the results of the election could be overturned. The lack of clarity over the vice president’s role in the count fueled the pressure campaign on former Vice President Mike Pence to reject valid electoral votes. The guidelines for deciding between multiple slates of electors inspired Trump supporters to designate fake electors. Most notably, the mechanism to challenge a state’s electoral votes played a role in the Jan. 6 insurrection as Trump called on his supporters to pressure members of Congress to object to the electoral votes of several states.

What would the proposed bill do?​

S. 4573, or the Electoral Count Reform and Presidential Transition Improvement Act, updates the ECA in several key ways by

• Mandating that rules for selecting electors in each state be made prior to Election Day,
• Clarifying that the vice president’s role in overseeing the counting of the electoral votes is only ceremonial,
• Raising the threshold for objections to a state’s electoral votes from just a single member of the House and Senate to 20% of both chambers,
• And designating the governor as the sole state official (unless otherwise specified by state laws) responsible for submitting a certificate of electors in order to make it harder for a defeated presidential candidate to submit false electoral slates.

The bill allows the presidential candidate who lost to challenge a state’s certification of electors in federal courts on an expedited basis. Challenges would be heard by a three-judge panel with the option of a direct appeal to the U.S. Supreme Court. Under the proposal, Congress is required to count the electors submitted by the governor or, if challenged, the electors judged by a court to be valid.

S. 4573 also repeals an older 1845 law that allows states to appoint electors after Election Day in case of a “failed” election. Because the law never defines what a failed election is, Trump supporters cited this provision when arguing that state legislatures could appoint electors in defiance of the popular vote.

A separate section of the bill updates the Presidential Transition Act of 1963 to allow multiple candidates to access funds and resources for their presidential transition in case of a disputed election. This came up most recently in 2020, when the Trump administration denied Biden’s campaign access to these resources for weeks after the election, but we also saw this happen in 2000 when the protracted election dispute delayed the transition and endangered U.S. national security.

What’s next in the bill’s path to passage?​

Sen. Amy Klobuchar (D-Minn.), chair of the Senate committee with oversight over federal elections, announced that a hearing on ECA reform will be held within the coming weeks, the first step in the bill’s path to President Biden’s desk. While not a cosponsor of S. 4573, Klobuchar previously released draft legislation to update the ECA in February.

Right now, S. 4573 has only nine Republican cosponsors — one short of the ten required to overcome a filibuster, provided that all 50 Senate Democrats also support it. However, the bill’s supporters are optimistic that they can secure more Republican backing for a vote later this year. There’s also broad consensus among members of Congress that updates to the ECA are necessary and Senate Minority Leader Mitch McConnell (R-Ky.) has expressed openness to reform.

Another potential wrinkle is the ongoing investigation into the events of Jan. 6 by a U.S. House committee. Following the release of S. 4573, two members of the Jan. 6 committee, Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), released a statement indicating the committee would release its own recommendations on how to update the ECA, a suggestion the committee confirmed during its July 21 hearing. Even if S. 4573 passes the Senate, its passage in the House is not assured, which may have its own vision on how to reform the ECA. Finally, with the August recess and the upcoming elections looming, there’s not a lot of time left to enact the bill before a new Congress convenes next January.

 

[Reality Check]

Is this going to lose like 57-43 in the senate?

At the bare minimum, they could pass without it being fillibustered. There are 9 Republican Senators co-sponsoring it, so if they all vote yes, that would be 59-41. Toomey and Blunt are retiring, and I'd be surprised if either voted against it given their histories.

 

[OfTheCross]

Members of U.S. Senate committee consider bipartisan changes to Electoral Count Act - Kansas Reflector

Lawmakers and legal experts at a U.S. Senate hearing on Wednesday outlined the need to pass legislation clarifying an archaic election law so that the peaceful transfer of presidential power is ensured.

kansasreflector.com

Moving slowly