House Speaker Nancy Pelosi, D-Calif., listens as Vice President Mike Pence speaks during a joint session of Congress to count the Electoral College votes of the 2020 presidential election on Jan. 6, 2021, in the House Chamber in Washington, D.C. Lawmakers have proposed to change the process of certifying the electoral count. (Pool photo by Erin Scott/Getty Images)
WASHINGTON — Lawmakers and legal experts at a U.S. Senate hearing on Wednesday outlined the need to pass legislation clarifying an archaic election law so that the peaceful transfer of presidential power is ensured.
The Electoral Count Reform and Presidential Transition Improvement Act, a bipartisan bill being pushed by 16 senators, was proposed after the former president tried to exploit a law passed in the 19th century in an unsuccessful attempt to overturn the 2020 presidential election.
“The will of the American people could have been overturned,” the chair of the Senate Rules and Administration Committee, Sen. Amy Klobuchar of Minnesota, said in her opening statement at the hearing, speaking about the Jan. 6 insurrection.
“Enemies of our democracy sought to exploit the provisions of this antiquated law to subvert the results of a free and fair election.”
The push to clarify the election certification process comes after Trump tried to pressure former Vice President Mike Pence to block the certification of the 2020 presidential election results.
The current law allows a congressional representative paired with a senator to object to a state’s electoral votes, which Republicans did.
But the vice president’s role isn’t necessarily clear, which is why Trump tried to pressure Pence into not certifying the election, along with sending a mob of pro-Trump supporters to storm the Capitol. Trump was impeached by the House for a second time for his role in the insurrection.
The bill would require 87 House members to object, rather than one, and would require 20 Senate members to object, rather than one.
The ranking member of the committee, Republican Sen. Roy Blunt of Missouri, said that the law needed to be updated and he was pleased to be doing so in a bipartisan manner.
“Written in a different age, the language of 1887, is really outdated and vague in so many ways,” Blunt said. “Both sides of the aisle want to update this act, and recent poling indicated that almost everybody that’s thought of this wants to update this act.”
A Collins-Manchin panel
The first panel was made up of the two senators pushing for the bill, Sens. Susan Collins, Republican of Maine and Joe Manchin III, a West Virginia Democrat.
The bill has several Republican cosponsors including Sen. Rob Portman of Ohio, Lisa Murkowski of Alaska, Mitt Romney of Utah, Thom Tillis of North Carolina, Ben Sasse of Nebraska and Todd Young of Indiana, among others.
Collins said it was an archaic and ambiguous law, and that the new bill has several reforms, including a clarification on the role of the vice president when certifying electoral votes.
“The idea that any Vice President would have the power to unilaterally accept, reject, change, or halt the counting of electoral votes is antithetical to our constitutional structure and basic democratic principles,” she said in her opening remarks.
Collins said one of the most significant portions of the bill “ensures that Congress can identify a single, conclusive slate of electors submitted by each state.”
“Finally, our bill strikes a provision of an outdated 1845 law that could be used by state legislatures to override their state’s popular vote by declaring a ‘failed election’ — a term that is not defined in that law,” she said. “The bill permits a state to modify the period of its election only in ‘extraordinary and catastrophic’ circumstances, and also only as provided for under the state’s law enacted prior to election day.”
Manchin added that the bill also “sets a hard deadline for state governors to certify their respective states’ electoral results — and if they fail to do so or submit a slate that does not match with the electoral results from the state, it creates an expedited judicial process to resolve.”
One of the witnesses, Derek Muller, a law professor at the University of Iowa College of Law, said in his opening statement that broad “bipartisan support is essential to address any efforts to reform the Electoral Count Act to ensure that futures Congresses have the confidence to abide by the rules.”
Muller said the current bill that senators were working on is “good” and has an “impressive amount of clarity.”
“And it is sufficient to handle the pressing challenges in presidential elections, for this moment and for the future,” he said.
He offered senators a handful of technical improvements to strengthen the Electoral Count Reform Act of 2022 in his testimony, which senators on the panel said they agreed with.
Sen. Mark Warner, a Virginia Democrat, said he was pleased with the reform bill and said he felt Muller’s technical amendments “dramatically improve the bill and clarify some of the misreadings.”
Klobuchar asked one of the witnesses, Janai Nelson, the president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc., what additional legislation Congress should consider.
Nelson said that to protect the democratic process, Congress needed to pass two voting rights bills, the John Lewis Act and the Freedom to Vote Act.
“The uniformity of those voting measures will restore and bring greater confidence to our electoral system,” Nelson.
Nelson added that since a Supreme Court 2013 decision, voting rights have been gutted. The preclearance requirement of the Voting Rights Act that the Supreme Court struck down covered nine states and a handful of counties and municipalities with a history of discriminating against voters of color.
Those states included Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Certain counties included in the preclearance requirement were in New York, Florida, North Carolina, California and South Dakota.
Nelson said that Congress should not stop with just strengthening the Electoral Count Act.
“Our democracy is presently in crisis because of a deep-seated, irrational, and discriminatory fear of the truly inclusive, multiracial, multiethnic democracy that our nation has never been, but our increasingly diverse electorate holds the promise to deliver,” she said.
“Congress must also address voting discrimination to fulfill its obligation to respond to the insurrection and rescue our democracy from present peril.”
The Senate has tried several times since 2020 to pass voting rights legislation, but has been blocked each time by Republicans. One Republican, Murkowski, said she would support Democrats in passing the John Lewis bill.
The Freedom to Vote Act would establish Election Day as a national holiday and set minimum standards that each state must have for elections, such as two weeks of early voting and an option for same-day voter registration.
The John Lewis bill, named in honor of the Georgia lawmaker and civil rights icon, would bolster the Voting Rights Act by establishing a new formula to require all 50 states to get special permission from the Justice Department before making any changes to voting laws or putting in place new voting requirements.
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