Bipartisan senators reach a general agreement on updating Electoral Count Act

A bipartisan group of senators working to reform the Voter Count Law has reached general agreement and is working on the legislative text during this working period, which ends June 24, according to two sources familiar with the matter.

The group met Wednesday night to discuss changes to the law, which governs how Congress counts and certifies Electoral College votes after each presidential election.

“We had a great meeting last night where we resolved almost every issue,” Republican Senator Susan Collins of Maine said Thursday.

Collins said the group had already drafted a text that would make clear that the vice president’s role is ministerial in the Electoral College’s vote-counting process. The new language also raises the threshold for triggering a challenge to a state’s list from one member in each chamber to 20% of members in each body. There would be a majority vote to support an objection.

“This was all worked out and agreed,” Collins said. “There are some other issues that are more complicated that we made a lot of progress last night.”

The group also agreed to allow federal grants that are used under the Help vote American law to be used to help secure election and election officials, Collins said. She added that there is “a sense of realism that we need to act this year to do it, and we want to try to avoid another January 6th.”

“Susan Collins formed a group and we had a lot of participation. It was a very good meeting,” Democratic West Virginia Senator Joe Manchin told reporters Thursday morning. “It was a very productive meeting and I am very confident that we will do something good.”

Advocates of the reform of the Electoral Count Act of 1887 argue that it is outdated and does not provide clear guidance on the role that Congress plays in certifying election results. This ambiguity, they say, created the circumstances that led to the attack on the Capitol in January 6th2021, when thousands of then-President Trump supporters stormed Capitol Hill to try to stop Congress from asserting what the states had already determined — that Joe Biden won the 2020 presidential elections.

“Having just spoken with my colleagues about the small differences we still have, I think you’ll hear something next week before the July recess,” Ohio Republican Senator Rob Portman said. “And that will, I hope, be a message both of how to fix the electoral counting system here in Congress, which everyone believes to be so old-fashioned, needs to be changed, but also to show that this institution can act together and do something even in a issue that tends to be very partisan.”

In April, Manchin and Collins, who are leading the effort to reform the law, received input from a bipartisan group of experts and jurists brought together by the American Law Institute. Before presenting its proposals, the group said that the Voter Count Act is “widely seen as impenetrably complex and ill-conceived, especially in its definition of the role of Congress in the final count of electoral votes for president and vice president.”

“The ECA reform should clarify that Congress has an important but limited role in counting electoral votes, consistent with the best understanding of the Twelfth Amendment and other relevant authorities,” the expert group wrote. “The ECA reform should help verify efforts by any state actor to disregard or overturn the result of an election conducted in accordance with state law in effect prior to election day, including state law governing the recount process, disputes and other legal challenges”.

A separate group of election law scholars wrote a Washington Post op-ed in January that made some suggestions for reforming the law, including that Congress should accept a state’s results when it receives only an official list of voters. Scholars have said that if a state presents a competing ticket of voters, Congress should be encouraged to decide which ticket is the real one. But if that cannot be determined, they suggest that a governor, state supreme court, or other institution make the final decision.

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