With very few legislative days remaining this year, the Senate has yet to take up legislation to make critically needed changes to the Electoral Count Act of 1887 to protect a key component of our democratic process. The 1887 law, which governs how Congress counts electoral votes following a presidential election, came under scrutiny in the aftermath of the 2020 presidential election and the January 6th attack on the Capitol. Some proponents of overturning the election results sought to justify such actions by pointing to ambiguous language in the act.
S. 4573, the Electoral Count Reform and Presidential Transition Improvement Act, would update procedures for the counting and certification of electoral votes for the presidency under the Electoral Count Act. The bill would clarify that the role of the Vice President is ministerial, with no power to adjudicate conflicts; raise the threshold for objecting to a state’s electors to at least one-fifth of the members of the House and Senate; ensure a single slate of electors provided by a governor in compliance with state and federal law; expedite judicial review; and clarify that states may move elections only in extraordinary and catastrophic circumstances. S. 4573 is the result of months of bipartisan negotiations led by Senators Joe Manchin (D-WV) and Susan Collins (R-ME) and was approved by the Senate Rules and Administration Committee by vote of 14-1 on September 27th. It currently has 38 cosponsors, including 16 Republicans, which proponents hope will prevent the bill being stalled by a filibuster.
The House of Representatives passed its version of the bill earlier this fall. H.R. 8873, the Presidential Election Reform Act, has some key differences from the Senate bill, including establishing a higher threshold for objecting to state’s electors. Given the lack of time to reconcile the two versions, it is anticipated that the Senate may seek to attach S. 4573 to a broader legislative vehicle, such as an omnibus year-end spending bill, that would then be passed by the House.
The ABA adopted a policy at the 2022 Midyear Meeting urging Congress to pass legislation to clarify and modernize the language and structure of the Electoral Count Act, including by making clear that the Vice President’s role is solely ministerial, raising the objection threshold to one-third of the members of the House and Senate, and requiring a majority vote of both the House and Senate to sustain an objection. In a letter to Senate leadership on November 29th, ABA President Deborah Enix-Ross noted that either bill “would bring order to the electoral process by providing a bright line where ambiguity and uncertainty currently exist” and would advance the rule of law “by clarifying roles and establishing the parameters of judicial review during this pivotal part of the peaceful transition of power in our country.”