WASHINGTON — For the first time in more than a century, Congress is poised to pass legislation that would reshape the process of certifying presidential elections, in direct response to efforts by former President Donald Trump and his supporters to change the 2020 election results to tip.
The Electoral Count Reform Act has been appended to a year-long $1.65 trillion spending package currently being passed through Congress and expected to be passed this week. ECRA is the result of nearly a year of bipartisan Senate negotiations to update an 1887 law that came into focus during the January 6, 2021, presidential results certification.
Under current law, Congress must meet in joint session on Jan. 6 after a presidential election to count and ratify the 538 electoral votes confirmed by the 50 states and the District of Columbia. The Vice President, who serves as President of the Senate, has the duty of counting the votes in a joint session of Congress.
In 2021, Mr Trump pressured then-Vice President Mike Pence to unilaterally reject some voters. Mr Pence declined, saying such a move was beyond his power. After Mr. Trump delivered a speech on the Ellipse urging his supporters to march on the Capitol, a pro-Trump mob overran the Capitol, temporarily halting the process. After Congress was reconvened, 139 House Republicans and eight Senate Republicans voted against confirming the election results.
The new legislation would clarify that the vice president’s role is simply to publicly count the votes and that he or she has no power to alter the results. It would also significantly raise the threshold for an objection to a state’s electorate to one-fifth in both houses, from now one House member and one Senator.
The proposal would also provide expedited challenge in federal court if a state seeks to delay or rig election results. The bill provides that the court decision is final and requires Congress to accept that decision.
The current Electoral Count Act “is a time bomb in democracy, and we learned on Jan. 6 that its ambiguity and confusing terms are very dangerous,” said Maine Senator Angus King, an independent who works with Democrats .
Sen. Susan Collins (R., Maine) recognized the work of a panel of 15 senators who span the ideological spectrum in negotiating the bill. “The events of January 6 have highlighted the flaws in the law,” she said.
The Biden administration called the changes “an essential part of the legislation.”
Sen. Josh Hawley (R., Mo.) said he opposes changes to the current law. Mr. Hawley was the first senator to announce he would appeal the results of the 2020 presidential election, a move that forced lawmakers to debate and vote on Jan. 6, 2021 to confirm states’ balance sheets. As Mr. Hawley entered the Capitol ahead of that day’s joint session, he was photographed pumping his fist to cheers from the pro-Trump crowd that had gathered outside.
“I think it’s fine, that’s the democratic process,” Mr Hawley said of the current rules. “I don’t think the appeal caused the uproar.”
Other lawmakers have used the process outlined in the Electoral Counts Act to object to election results in recent years. Some Democrats unsuccessfully protested the confirmation of both former President George W. Bush’s victories and Mr Trump’s.
In both cases, the Democratic presidential candidate had already relented and did not support the objections. Mr Trump has continued to call for overturning the results and falsely claiming he won the 2020 election.
The House Special Committee investigating the Jan. 6 attack on Monday issued four criminal referrals for Mr. Trump to the Justice Department after investigating the background and the attack itself. Mr Trump has denied any wrongdoing related to the riot. The Justice Department is currently conducting a parallel investigation into the events.
“I don’t care if they change the Electoral Count Act or not, it’s probably better to leave it as it is so that it can be adjusted in case of fraud,” Mr Trump said in a post on Tuesday Truth Social.
Mr Trump said the proposed changes showed the vice president did indeed have the power to block voters under current law. Supporters say they are trying to eliminate any loopholes that could be exploited by future candidates, including Mr Trump.
Among the provisions of the Electoral Count Reform Act included in this week’s spending package is a requirement that the governor of each state, except as required by the state’s statutes or constitution, produce the list of electors. That would discourage states from proposing bogus voters, as some tried to do in 2020.
It would also prevent state legislatures from overriding the popular vote in their states by declaring a “failed election” except on narrowly defined “extraordinary and catastrophic” events.
Edward Foley, director of electoral law at Ohio State University, said the most important provision of the bill is to ensure the courts are the last resort in cases of wrong voters.
“We can see the courts as the branch of government most immune to this type of political denial,” he said.
The version included in the spending bill is the Senate version, which had 38 co-sponsors including both Majority Leader Chuck Schumer (D., NY) and Minority Leader Mitch McConnell (R., Ky.).
In September, the House of Representatives passed its own version of the legislation, 229-203. Nine Republicans voted jointly with Democrats to pass the House of Representatives bill. Neither of them will return to Congress next year.
Write to Eliza Collins at [email protected] and Lindsay Wise at [email protected]
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