A bipartisan effort to prevent future attempts to overturn a presidential election during the ceremonial counting of Electoral College votes received broad support from election experts at a hearing before the Senate Judiciary Committee on Wednesday.
Maine’s senators each played key roles in the hearing. Republican Sen. Susan Collins spearheaded the drafting of the bill alongside West Virginia Democrat Joe Manchin, leading a group of 16 co-sponsors that included nine Republicans, just one short of the number needed to prevent a potential filibuster. The draft would clarify ambiguities in the 1887 Electoral Count Act that former President Donald Trump and his supporters attempted to exploit to overturn the result of the 2020 election.
The attack on the U.S. Capitol on Jan. 6, 2021, was part of Trump’s effort and sought to disrupt the ceremonial counting of the Electoral College ballots by members of Congress and to hunt down Vice President Mike Pence for refusing to participate in the plan.
“Nothing is more essential to the survival of democracy than the orderly transfer of power,” Collins told the committee. “And there is nothing more essential to the orderly transfer of power than clear rules for effecting it.”
Sen. Angus King, an independent who caucuses with Democrats and helped draft a set of Electoral Count Act reform recommendations used by the bipartisan group, sits on the Rules Committee and asked election law experts if certain measures in the bill were sufficient to prevent rogue governors or state legislatures from trying to overturn the popular will and effectively reverse the result of state elections.
“This is not a partisan issue. This is a mechanical issue, a rule issue that involves how our government should work no matter who is in charge,” King said at the hearing. “I don’t think there’s a more important matter before us in this Congress. … It’s a fundamental issue that goes to the heart of our democratic system.”
Collins and King both urged their colleagues to pass the legislation by the end of this year in order to have the rules in place before the 2024 presidential campaign kicks into high gear this winter. The committee’s leading Republican, Sen. Roy Blunt of Missouri, also expressed this desire, along with Manchin and his West Virginia colleague, Republican Shelley Moore Capito.
“The time to reform the ECA is way past due,” Manchin told the committee. “The time for Congress to act is now.”
“It is not a partisan power grab to seize elections with federal power,” Capito added. “These electoral reforms offer commonsense solutions to a recurring problem. … As soon as we turn the corner into January, we are in the middle of a lengthy two-year presidential election. We need to button this up before the end of the year.”
In an interview with the Press Herald Wednesday afternoon, King said he was encouraged by the hearing and thought Blunt’s remarks supporting getting the bill passed this session was “a big deal” given his influence in the Republican caucus and his status as a former Missouri secretary of state.
“I think what we are going to see is this committee take the bipartisan bill and incorporate the recommendations for technical changes by some of the law professors and we’ll be able to work things out,” King said via telephone from Washington. “This is in the mutual interest of anyone interested in the future of democracy and I’m really pleased that it is not a partisan situation.”
The proposed reforms – announced by Collins and Manchin in a joint statement on July 20 – include making explicit that vice presidents don’t have the power to judge or overturn the Electoral College results. They also raise the bar for lodging objections to Electoral College results from one member of Congress to at least one-fifth of the members and eliminate a loophole that state legislatures could use to throw out election results simply by declaring the election to be “failed.”
All of the election law experts consulted at the hearing endorsed all of those measures, including Bob Bauer of New York University School of Law, attorney John Gore of the D.C. law firm Jones Day, Brookings Institution fellow Norman Eisen, University of Iowa law school professor Derek Muller, and Janai Nelson, president of the NAACP Legal Defense and Educational Fund, who also emphasized the need to pass laws protecting people’s ability to vote, which the bill does not address.
“It is not hyperbole to say that the fate of American democracy hangs in the balance,” Nelson told the panel. “Black and brown Americans face the greatest assault on our voting rights since the Jim Crow Black Codes rolled back the progress made during Reconstruction. The threat of our democracy breaking apart at the seams and sliding irreversibly into authoritarianism – ceasing to exist as everyone alive today has known it – has not been as acute since the Civil War.”
The experts’ suggestions on how to improve the bill itself focused on technical matters relating to the time period in which federal court review must take place.
“I do not think there is a gaping hole in the (proposed) statute,” said Bauer, who was White House counsel for former President Barack Obama. “I think there are technical clarifications.”
The bill appears to have a reasonable chance of passing the Senate. Senate Majority Leader Charles E. Schumer and Senate Minority Leader Mitch McConnell gave the bipartisan group a long leash, suggesting they support the effort. McConnell reiterated to reporters last month that the Electoral Count Act “needs to be fixed,” though he did not indicate whether he would endorse the new plan. Blunt’s verbal endorsement at the hearing appears to add a 10th Republican vote, enough to overcome a filibuster.
If the Senate passes the bill, the action moves to the House, where both of Maine’s representatives – Democrats Chellie Pingree and Jared Golden – have expressed support for addressing the issues it raises.
King has emphasized that the electoral count reforms are no substitute for the voting rights legislation that Republicans, including Collins, blocked from proceeding in the Senate three times. He has said passage of voting rights bills are essential to the survival of democracy at a time when Republican state legislatures are imposing a variety of measures to make it more difficult for voters to cast their ballots and, in some states, making changes that place the oversight and certification of elections in the hands of partisan actors.
King also appeared to have concerns that some of the bill’s language might not be strong enough to prevent a bad-faith attempt to disrupt the Electoral College vote counting process, such as a rogue governor refusing to ceremonially certify the Electoral College electors for his state or a legislature putting forward an alternate slate of bogus electors who would defy their state’s popular vote.
He asked several of the experts whether the bill is sufficiently strong on these points, and they said they believe it is.
“Existing law already contains mechanisms to address the scenario of a governor failing to certify a slate of electors or certifying a false set of electors,” said Gore, who was the acting head of the Department of Justice’s civil rights division during the Trump administration. “The reform act doesn’t displace any of that, (and it) doesn’t need to address the subject because there are legal mechanisms at the state level.”
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