Senators prepare to unveil changes to Electoral Count Act

Bipartisan effort to overhaul 1887 law Trump tried to exploit to stay in power gains momentum in the Senate

A bipartisan group of senators is expected to release this week legislation to update the Electoral Count Act — the 19th-century law that governs the process of certifying presidential elections — in an attempt to prevent a repeat of former president Donald Trump‘s efforts to remain in power after losing the 2020 election.

“This turned out to be a more complex task than we anticipated, as always is the case when you’re delving into an 1887 law that has ambiguous and outdated language, but I do anticipate that our group will introduce the bills this week,” Sen. Susan Collins (R-Maine) told reporters Monday night. 

Early indications are that it has a good chance of passing the Senate. 

Democratic Whip Sen. Richard J. Durbin (D-Ill.) said he spoke with fellow senators working on the bill last week and that he supports the scope and content of the bill. “I would have written it differently, but I know the reality of the 50/50 Senate,” he said. 

Durbin’s likely support is a strong signal that the bill could get significant Democratic backing.

Senate Majority Leader Chuck Schumer (D-N.Y.) and Senate Minority Leader Mitch McConnell (R-Ky.) have given the bipartisan negotiators a long leash — a sign the legislation is likely to garner the support of leaders in both parties. Collins said she has been in contact with Schumer and McConnell on the bill.

The problem being addressed

Negotiations between Collins and Sen. Joe Manchin III (D-W.Va.) are a culmination of months of bipartisan negotiations to revamp a previously obscure law governing the peaceful transition of power. Experts say it is ambiguous and poorly written — which never mattered before Trump.

Trump and his allies sought to exploit ambiguities in the law by pressuring Vice President Pence to reject votes for Biden from certain states so he could in turn recognize informal slates of electors for Trump; declare the election in dispute, leaving it to Congress to decide the result; or kick off a process where certain GOP-controlled state legislatures would be pressured to vote to replace Biden electors with ones who support Trump. Our colleague Rosalind S. Helderman broke down all the possible machinations earlier this year.

There was widespread agreement the 1887 law should be changed to prevent any of these scenarios in the future.

The proposed legislation is coming together as the House committee investigating the Jan. 6 attack on the Capitol prepares on Thursday to hold its eighth hearing this year in which it will lay out the ways Trump and his allies attempted to overturn the 2020 election results by pressuring state and federal officials to do their bidding.

“We saw some remarkable political courage by state officials, including governors and state secretaries of state, last time, and I hope we see that again, but we certainly can’t count on it,” said Matthew Seligman, a Yale Law School fellow who has studied the Electoral Count Act’s shortcomings. “So if Congress doesn’t pass this law, I am terrified.”

Collins and Manchin’s proposal is expected to set a deadline for when states can change their rules, clarify that states cannot choose their electors after Election Day, create more stringent requirements for Congress to object to the certification of a state’s electors and clarify that the vice president’s role is ceremonial with no power to reject electors.

The proposed bill will also address the Presidential Transition Act, which governs the transfer of power between Election Day and inauguration, and include some changes to how the Postal Service operates in an election. 

“The bill is going to hit the high notes and offer dramatic improvement and clarity on how we administer elections,” said Derek T. Muller, professor of law at the University of Iowa, who has been advising negotiators on the legislation. 

Sen. Thom Tillis (R-N.C.), who has been involved in the talks, said the hardest issue to resolve was how to handle disputes over alleged election irregularities.

“What is the right venue? How do you go about adjudicating it? Expedite it? That sort of thing,” Tillis said, adding this and all other outstanding issues have been worked out.

The legislation is a far cry from the expansive changes to voting rules that Democrats tried to pass this Congress and said were needed to combat voting restrictions in GOP-controlled states. But their efforts were stymied first by Republican opposition and then earlier this year by Sens. Kyrsten Sinema (D-Ariz.) and Manchin who objected to changing the Senate filibuster rule to pass the voting package, frustrating Democrats and many election watchdogs. 

But election law experts agree clarifying of the Electoral Count Act is necessary. 

“I am optimistic that Congress is going fix most or all of the biggest problems of the ECA,” Adav Neti, legal director of the Campaign Legal Center, said. 

After Roe’s end, Dems press GOP votes on marriage equality, birth control

House Democrats this week will push Republicans to go on the record with votes that would give same-sex and interracial marriages federal protection and repeal the 1996 Defense of Marriage Act, which defines marriage as between one man and one woman. The House will also vote on legislation that would protect access to birth control and prevent healthcare providers from penalties for administering it, Marianna Sotomayor and Leigh Ann report.

• It’s possible this week’s legislation related to same-sex and interracial marriage, as well as birth control could become law — potentially undercutting Democrats’ hope to differentiate their party as the one protecting personal freedoms.

“I don’t think these are messaging bills. I believe these are genuinely necessary bills,” Rep. Susan Wild (D-Pa.) said. “I think it would be negligent of us, it would be malpractice, if we didn’t take these bills up.”

The votes this week still present a tricky spot for Republicans, many of whom want to avoid debating what they too deem to be non-controversial issues.

Sen. Todd Young (R-Ind.), who is up for re-election but easily won his primary earlier this summer, was surprised by a question about possibly voting on federally protecting marriage equality and contraception.

“So I just didn’t know that this was an issue that was likely to be before Congress,” Young tells Marianna and Leigh Ann. “I’ll speak to my colleagues, but it’s a serious issue to, you know, millions of Americans, myself included.”

Durbin told reporters Monday that he would support putting both bills up for a floor vote once they pass the House.

Schumer is expected to move forward today with a procedural vote to move on to limited microchips manufacturing legislation. Schumer has said the bill will include a minimum of $52 billion worth of subsidies for semiconductor manufacturers as well as tax credits to build or improve chip factories. 

But a bipartisan group of senators met Monday night as a last-minute attempt to include more provisions in the measure, including research and development funding. 

It’s unclear what the bill will look like but what we’ll be watching is if the vote happens, how many votes it gets. The procedural vote will need just a simple majority but there will be a 60-vote threshold roll call soon.

Sen. Todd Young (R-Ind.), the leading Republican on the measure, said that it will gain the support of enough Republicans but that Republicans need to start speaking up so Schumer is confident of the whip count. 

Meanwhile, opening statements are expected today in the federal trial of former Trump adviser Stephen K. Bannon.

Biden considers issuing climate declaration, sources say

?: “President Biden is considering declaring a national climate emergency as soon as this week as he seeks to salvage his environmental agenda in the wake of stalled talks on Capitol Hill,” per our colleagues Tony Romm and Jeff Stein. Two of the individuals “said they expect the president to announce a slew of additional actions aimed at curbing planet-warming emissions.”

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