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It is still unclear what exactly Speaker Nancy Pelosi’s (D-CA) Jan. 6 committee is trying to accomplish, but a bipartisan group of 16 senators proved this week the body’s work is not necessary to reach real, productive, commonsense electoral reform.
Negotiated by Sens. Susan Collins (R-ME) and Joe Manchin (D-WV), the Electoral Count Reform and Presidential Transition Improvement Act is perhaps most praiseworthy for what is not in it. Specifically, all of the highly partisan and harmful provisions of the Democrats’ preferred electoral legislation — The For the People Act, which would have banned voter identification requirements, among other things — have been removed from this bill.
Instead, the legislation focuses solely on updating the Electoral Count Act of 1887, a law President Donald Trump tried to exploit to delay the certification of the 2020 presidential election.
Most importantly, the bill makes clear that the vice president’s role in certifying state electoral votes is “solely ministerial.” This is what Vice President Mike Pence correctly concluded on Jan. 6, despite Trump’s concerted effort to persuade him otherwise. If this legislation becomes law, and it should, all that drama will be a thing of the past.
The legislation also streamlines how states certify their electoral slates, setting a hard deadline (six days before the Electoral College meets) for governors to certify their respective states’ electoral results. If a governor submits a slate that does not match with the electoral results from that state, the legislation creates an expedited federal cause of action for presidential candidates that puts the issue to a three-judge panel. That panel’s decision is then immediately reviewable by the Supreme Court.
State legislatures are still free to determine how their states select electors, but the legislation makes clear that these rules must be set before election day. Legislatures are specifically forbidden from creating one set of rules before election day and then throwing the results out if they don’t like them.
Finally, the bill also makes it harder for members of Congress to create mischief on the day the electoral votes are counted. Instead of just needing the objections of just one representative and one senator, the new law would require one-fifth of the House and one-fifth of the Senate to object before any challenge to a state’s electors could start.
The legislation isn’t perfect. The remedy for a governor who is found to have submitted a fraudulent slate of electors is unclear. But the bill goes a long way toward closing any loopholes that bad actors could exploit to delay, or possibly overturn, an election result.
Kudos to Collins and Manchin for getting this agreement done and for proving that productive bipartisan legislation still is possible in this town.
