Electoral Count Act reform green-lighted in Senate hearing
A bipartisan hearing panel recommends minor tweaks, but the bill seems primed to get through the Senate Rules Committee quickly
The Electoral Count Reform Act and Presidential Transition Improvement Act was considered in an extremely cordial and productive hearing today of the Senate Rules Committee chaired by Senator Amy Klobuchar with ranking member Senator Roy Blunt. The five witnesses — experts and practitioners in election and constitutional law — all praised the Collins-Manchin draft bill introduced last month on behalf of a bipartisan group of 16 senators.
The witnesses directly and bluntly dismissed claims being made by Donald Trump that the need for this legislation shows that there was sufficient ambiguity in the law to support his argument that on January 6, 2020, Vice President Pence had discretion to either not count certain state’s certification of electoral votes or count “alternative” (that is, fake) slates of electors submitted outside official channels to the Congress. The witnesses unanimously agreed that the current language of the law (as well as 130 years of electoral history) provided zero authority for the Vice President to exercise discretion over which votes to count in his ministerial role as President of the Senate. However, to preclude bogus claims like these from arising in the future, the proposed bill makes clear in no uncertain terms that “the President of the Senate shall have no power to solely determine, accept, reject or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or votes of electors.”
The most serious point of contention with the bill relates to court challenges to a governor’s certification of a state’s electors. The bill requires certifications to be made six-days prior to the meeting of the electoral college and states that such certifications are “conclusive.” But the bill also recognizes that judicial challenges to a governor’s certification may be brought and that any judicial decree regarding these certifications “shall replace and supersede” a governor’s certification.
Marc Elias at Democracy Docket (and a leading Democratic Party election lawyer) has criticized these provisions as confusing and impractical, especially due to the six-day time limit for such challenges to be completed. The panel was confident, however, that judicial challenges to a “rogue certification” by, for example, a Big Lie governor were protected by the bill. Look for some technical changes and perhaps a longer time period for the lawsuits to be completed.
The next step for the ECRA is Rules Committee mark-up.