House panel issues first proposed reforms to Electoral Count Act after Jan. 6 attack

Claudia Grisales | January 14, 2022
Republican House members objected to the certification of votes, allowed under the Electoral Count Act, from Nevada during a joint session of Congress on Jan. 6, 2021. It was rejected because a senator did not join in the objection.
Republican House members objected to the certification of votes, allowed under the Electoral Count Act, from Nevada during a joint session of Congress on Jan. 6, 2021. It was rejected because a senator did not join in the objection.Win McNamee | Getty Images

A congressional committee has issued the first staff report on the Electoral Reform Act, a key target for lawmakers who are now weighing new legislative fixes to safeguard elections in the wake of the Jan. 6 attack on the Capitol.

The Democratic-led House Administration Committee late Thursday rolled out the 31-page report on the Electoral Count Act of 1887, after months of review by a team of legal experts and staff. Lawmakers say the siege made clear that former President Donald Trump and other Republicans tried to exploit weaknesses in the law to give rise to efforts to overturn the results.

Committee staff said the dated law is “badly in need of reform,” and issued more than a half dozen proposals, including dramatically raising the threshold for objections to a state’s presidential election results and removing the vice president as the presiding officer.

It could become the basis for legislative proposals for the House select committee investigating the deadly siege, and get folded into ongoing Senate negotiations on election reforms, said California Democratic Rep. Zoe Lofgren, who chairs the House Administration panel and sits on the Jan. 6 committee.

“This is a statute that’s over 100 years old,” Lofgren told NPR shortly before the report was released. “It has ancient language that may not be as clear as we’d want, and we are now observing the potential of threats to the orderly running of elections and apolitical running of elections in the future.”

“We want to do everything we can to make sure that there is no funny business,” Lofgren added.

The Electoral Count Act, also known as the ECA, dictates the counting of electoral votes following a presidential election. Congress oversees the count of finalized state votes, while also allowing lawmakers to object to the results.

Lofgren said the panel had a team of lawyers and staff look at potential changes to the law, and scholars of “every political stripe” were consulted along the way. She also noted there are now House and Senate staff-level talks on potential Electoral Count Act reforms.

“I do think having the staff analysis out will be helpful,” Lofgren said. “So the public can take a look at…what the options are — as well as the senators.”

The timing for the potential reforms could prove fortuitous for Congress: Senate Democrats are the verge of a final slog to advance major voting rights legislation that is doomed to fail without Republican support. Traction on a new wave of election security proposals could offer Democrats a consolation prize instead.

Potential for bipartisan traction

Key Republicans, such as Senate GOP leader Mitch McConnell, R-Ky., have already expressed interest in strengthening the ECA. And members of a bipartisan group, including Maine Republican Sen. Susan Collins, have jumpstarted talks to address that and other laws in the wake of the Jan. 6 violence.

Earlier this week, Collins told reporters the Electoral Count Act is a “central piece” to the bipartisan group’s talks now.

For example, only one member from each chamber is needed currently to raise objections to a state’s election results. That fueled Republican attempts last year to thwart the certification of President Biden’s election, and delayed the proceedings, which were disrupted by the Capitol breach.

“Our group seems to have consensus on the fact that it should take more than one member of the House and one member of the Senate to challenge the state’s electoral count,” Collins told reporters. “That’s reform that desperately needs to be made.”

House Administration staff propose raising that threshold so that at least one-third of each chamber would be needed for an objection to be heard — or more than 30 senators and 140 House members.

“The increased threshold would ensure that objections are credible and enjoy substantial support in both chambers before the houses are forced to consider them,” the House Administration staff report argues.

The reforms would ensure timely completion of the count, prevent individual members from obstructing the proceedings, and reduce the chances that Congress rejects a state’s electoral votes, staff said.

In addition, the report argues that objections to a state’s results should be subject to a vote by a supermajority — not a simple majority — in both chambers.

Limiting the vice president’s role during election certification and other reforms

Ahead of the Jan. 6 proceeding last year, Trump pressured then-Vice President Mike Pence to abandon his ceremonial role to undo Biden’s win. Shortly before the proceedings began, Pence issued a letter rejecting the move, infuriating Trump who lambasted Pence even as the Jan. 6 attack was ongoing.

The House Administration staff report says the vice president should not preside at the count. After all, the vice president is often on their party’s ticket, either seeking the top spot or a second term on the job. Rather, the presiding officer should be the Senate president pro tempore, usually a senator of the majority party with the most seniority, the report said.

During previous electoral counts, individuals who have filled that role have never been in a simultaneous position of running for president, the report noted.

Also, staff argues, the vice president’s role should be limited to a “constitutional minimum,” that is, to receive the electoral votes from states, open the votes at the count and hand the votes to the presiding officer. And the ECA should be clearer on the presiding officer’s ultimate powers, the report said.

“The ECA should also clarify that the presiding officer does not have substantive discretion over counting votes, meaning that he or she shall not be permitted to determine which votes are counted or not counted, or presented or not presented, and shall in all cases apply the rules of the ECA as written, in consultation with the congressional parliamentarians,” the report said.

The report goes on to suggest new timelines that follow a presidential election. For example, it proposes delaying the so-called “safe harbor” deadline for states to file election results from early December to later that month — easing pressure on election officials and giving states more time to sort out lingering contests. The extended deadline would also shorten the window between the receipt of those state’s election results and their certification in Congress.

The staff also argues for narrowing states’ ability to appoint electors after Election Day, and Congress should make it clear that states can count mail-in ballots before, on or after Election Day.

The moves would end ambiguity about the timing of presidential elections, clarify Congress’s role and constrain its role in future controversies, while also not benefiting either party in the effort, the report argued.

“Confusion and chaos are not acceptable when the United States undertakes a transfer of power,” the report argues. “If adopted, these reforms will help to ensure that the events of January 6, 2021, are not repeated at future counts.”

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