Lame Duck Congress Poised To Reform Electoral Count Act

Reforms to the act would explicitly state that the vice president has no power to intervene in the count, as Trump pressured Pence to do in 2021.

AP/J. Scott Applewhite, file
Vice President Pence returned to the House chamber after midnight, January 7, 2021, to finish the work of the Electoral College after the attack on the Capitol. AP/J. Scott Applewhite, file

Congress is poised to pass a series of reforms to the byzantine law that President Trump sought to exploit to remain in power, the Electoral Count Act, in the lame duck session in the coming weeks.

With Mr. Trump already campaigning to regain the presidency in 2024 and a divided government on the horizon, the reforms, which passed the House in September, are becoming more pressing for lawmakers hoping to pass them well before the 2024 election.

A spokesman for Protect Democracy, a group advocating for the passage of reforms, Blake Jelley, tells the Sun that the bipartisan and bicameral support for the reforms “underscores the cross-ideological consensus” for the effort.

“With the 2024 presidential campaign already looming, the stakes couldn’t be higher for Congress to safeguard the will of voters and remove ambiguities in the Electoral Count Act that were exploited in the last presidential election,” he says.

The proposed reforms would close some potential loopholes in the current law that could be abused, and would explicitly eliminate the possibility of potential interference by a vice president, as was sought by Mr. Trump.

One key provision would require that states appoint electors on Election Day, and would eliminate the concept of an election where a state “failed to make a choice” — a situation that currently allows states to delay the appointing of electors.

The bill would also clarify the schedule for how a state chooses electors and would give federal courts an explicit role in resolving disputes surrounding a state’s lawful certification of a vote.

Members of Congress also would have a higher bar to meet if they wanted to object to the electoral process. If the reforms are passed, they would need the support of one-fifth of their colleagues in either chamber to object to and delay the electoral count.

A separate version of the bill spearheaded by Representatives Liz Cheney and Zoe Lofgren would raise the bar to one-third of each chamber. Previously, an objection needed only the support of one senator and one representative.

The bill also specifies two grounds for objections aimed at eliminating the possibility of alternative or fake electors that Mr. Trump attempted to put forward following the 2020 vote.

These formal grounds for objection are meant to prevent elections from being unlawfully certified as well as preventing certification based on unlawful influences like bribery.

Most importantly, the reforms would explicitly state that the vice president’s role in counting electoral votes is strictly “ministerial” and that he or she does not have the power to intervene in the count, as Mr. Trump pressured Vice President Pence to do in 2021.

Senator Blunt, who has been a leading voice among those seeking to reform the act, said the legislation is “thoughtfully crafted with input from election experts, legal scholars, and senators on both sides of the aisle.”

“I’m encouraged by the strong, bipartisan support the Electoral Count Reform and Presidential Transition Improvement Act received,” Mr. Blunt said. “The bill addresses the major flaws of the Electoral Count Act and merits the support of the full Senate.”

The push to reform the Electoral Count Act, which began in the pages of the Wall Street Journal, has since picked up a healthy amount of bipartisan support on Capitol Hill.

The bill has the support of 229 members of the House, near unanimous support in the Senate Rules Committee, and 38 co-sponsors in the Senate, including the minority leader, Senator McConnell.

The Senate will need to vote on its version of the bill and then reconcile any differences with the House bill. Once this is done, a representative of a group advocating for the bill’s passage said, both houses will need to pass the identical bills.

A point of contention surrounding the bill has been its potential interaction with an upcoming Supreme Court case, Moore v. Harper, which concerns the independent state legislature theory.

This is a legal theory that holds that a state legislature has the power to govern elections without any oversight from state-level authorities such as courts.

Critics of the reforms argue that if the Supreme Court were to affirm this theory, it would open the door to state legislatures appointing their own sets of electors regardless of the outcomes of popular votes.

Proponents of the reforms argue that the question of the independent state legislature theory would be beside the point, as state legislatures would still be required to comply with federal law in conducting elections, including the Electoral Count Act.

“Even a maximalist version of the ISL theory would not empower state legislatures to defy the federal constitution or disregard federal statutes, and none of the proponents of or experts on ISL suggest such a reading,” attorneys Genevieve Nadeau and Helen White wrote.

While the specifics of how far state legislatures are allowed to go would be subject to the final ruling in Moore v. Harper, no party in the case has argued that the doctrine would allow state legislatures to subvert federal election law.

The New York Sun

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