Clock Is Ticking on Chance to Fix the Electoral Count Act

A last-ditch effort to reform the Electoral Count Act is underway on Capitol Hill—but it remains uncertain whether the bill, which makes changes experts consider crucial to the integrity of future elections, will be enacted before time runs out on Democratic control of both chambers of Congress.

To address failings in the current law that were laid bare on January 6th, legislators aim to solidify and streamline the final steps in the existing electoral process. Among the expected reforms:

• Clearly defining the vice president’s role in the certification process as ceremonial.
• Expedited judicial review for certification challenges.
• Raising the threshold for objecting to election results in Congress to at least one-fifth of members in each chamber.
• Protecting each state’s popular votes to ensure rogue state legislatures do not override the will of the voters.

But there were conflicting proposals on either side of the Capitol. The House version of the legislation, the Presidential Election Reform Act, was sponsored by Democrat Zoe Lofgren and cosponsored by Republican Liz Cheney; it passed the House in September in a near-party-line vote. The Senate version, spearheaded by Republican Susan Collins and Democrat Joe Manchin, is the Electoral Count Reform Act. It has strong bipartisan support, with fifteen Republican senators, including Minority Leader Mitch McConnell, having signed on as cosponsors.

Lofgren and Cheney sent a letter late last week to Manchin, Collins, and the Senate leadership seeking to clarify two outstanding issues. First, there’s the concern that the grounds listed for objecting to Electoral College ballots—that the ballots were not “lawfully certified” or “regularly given”—are not explicitly defined in the Senate version of the bill. The House version of the bill is very explicit and narrow about the grounds for legitimately objecting to electoral slates. Second, Lofgren and Cheney note that some decades-old federal court rulings hold that the federal judiciary must not get involved in cases determining which candidate in an election has won the most votes. The House version of the bill clarifies that federal courts do have jurisdiction in litigation relating to the certification of presidential elections; the Senate bill does not.

There have not been any developments since sending the letter, Lofgren told The Bulwark on Monday.

Meanwhile, in the Senate, Collins is confident the bill can get through the finish line because of willingness from leadership on both sides, but noted the dwindling time on the legislative clock.

“The support is there,” Collins told The Bulwark. “So it’s a matter of finding the right vehicle for it—or getting floor time. Floor time is going to be hard to get.”

In remarks on the Senate floor on Tuesday morning, Senate Majority Leader Chuck Schumer suggested the bill will be tacked on to the omnibus spending bill still being hashed out, giving the reforms a much needed boost as the Senate enters final negotiations on government funding.

“I expect an omnibus will contain priorities both sides want to see passed into law, including more funding for Ukraine, and the Electoral Count Act, which my colleagues in the Rules Committee have done great work on,” he said. “It will be great to get that done.”

By Tuesday evening, top appropriators reached a deal on what retiring Sen. Patrick Leahy (D-Vt.) called a “bipartisan, bicameral framework” for the omnibus bill. While many of the bill’s details have not yet been settled, the existence of the deal, paired with Schumer’s statement, gives considerable reason for optimism that ECA reform will make it to the finish line.

Outside of Congress, organizations and experts have advocated for the bill’s passage to prevent another January 6th-style attempt to subvert federal elections. The American Civil Liberties Union, the League of Women Voters, and a variety of other organizations and experts have cited the importance of the legislation in forestalling a repeat of the 2020 election aftermath.

“As the events of January 2021 made clear, the current law contains poorly drafted language governing critical aspects of the election certification process, leaving it vulnerable to exploitation,” the ACLU’s Kristen Lee wrote in a call for Congress to pass the reforms. “Attempting to take advantage of the ambiguities in the Electoral Count Act on January 6, the former president and his supporters asserted that the vice president could change the election outcome. This resulted in the worst attack on our Capitol since the British set it on fire in 1814.”