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Klobuchar, others lead effort to reform electoral college count; certification

The Electoral Count Act has been in the spotlight since the 2020 election, when former President Donald Trump attempted to get then Vice President Mike Pence to throw out results from states Trump lost.

Sens. Amy Klobuchar, above, Angus King and Dick Durbin introduced the Electoral Count Modernization Act in hopes of strengthening the integrity of the country’s voting process after the poll booths close.
Sens. Amy Klobuchar, above, Angus King and Dick Durbin introduced the Electoral Count Modernization Act in hopes of strengthening the integrity of the country’s voting process after the poll booths close.
REUTERS/Elizabeth Frantz

After several failed attempts to pass voting rights legislation over the past year, a group of senators including Minnesota Sen. Amy Klobuchar have introduced a new bill that would reform one of the country’s oldest election laws.

Sen. Klobuchar, Sen. Angus King (I-Maine) and Sen. Dick Durbin (D-Illinois) released a discussion draft of their new bill Tuesday, called the Electoral Count Modernization Act. The bill would update the Electoral Count Act of 1887, which aims to minimize congressional involvement in disputed election results. 

“Experts across the political spectrum agree that the Electoral Count Act of 1887 needs to be updated to reflect the current realities and threats facing the United States and our election process,” the three senators said in a joint statement released Tuesday. “In response, as leaders on the Senate Rules Committee with jurisdiction over federal elections and members of Senate Democratic leadership, we have been working with legal experts and election law scholars to develop legislation that would modernize the framework of the Electoral Count Act of 1887.”

The senators said while they recognize updating the Electoral Count Act is “not a substitute for confronting the wider crises facing our democracy,” they introduced this bill in hopes of strengthening the integrity of the country’s voting process after the poll booths close.

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How Klobuchar, King and Durbin want to reform election laws

The Electoral Count Act has been in the spotlight since the 2020 election, when former President Donald Trump and many Republicans in Congress disputed the results of the election, and Trump attempted to get then Vice President Mike Pence to throw out results from some of the states Trump lost.

Klobuchar’s bill would also increase the number of lawmakers in the House and Senate needed to support an objection before both chambers have to vote on it. Under current rules, it only takes one member each from the House and the Senate. The Electoral Count Modernization Act would increase the number of members to one-third of both chambers. It would also increase the threshold for upholding an objection from a simple majority to three-fifths of votes in both chambers.

With this proposed rule change, Democratic lawmakers are likely trying to avoid the situation they encountered in 2020. 

photo of article author
University of Minnesota election law professor David Schultz
However, University of Minnesota election law professor David Schultz said that this plan could potentially backfire on Democrats as they attempt to stop various Republican-led state legislatures around the country from implementing restrictive voting laws at the state level.

“If there is widespread voter suppression in the future, raising the threshold might make it harder to root out some of the nefarious behavior that’s happening at the state level,” Schultz said. “We see now, after the 2020 elections, the possibility of more states engaging in nefarious behavior … and you want some mechanism in place for Congress to be able to say, ‘yes there is a problem, and we have to address it.’”

Klobuchar’s bill would also narrow the reasons Congress can object to a state’s electoral votes during a formal counting, and set a deadline of Dec. 20 following the general election for states to resolve post-election issues and make a final appointment of electors.  It would also attempt to strengthen defenses against “fake electors,” a concept that has come up quite a bit in the aftermath of the 2020 election.

Although Klobuchar, King and Durbin have set forth a fairly comprehensive bill, another separate, bipartisan group of senators led by Sen. Susan Collins (R-Maine) and Joe Manchin (D-West Virginia) are working on  their own proposal to reform the Electoral Count Act. The group includes 16 senators met earlier this week with the goal of reconvening on Friday to figure out how much progress they’ve made.

Manchin has been a thorn in the side of many progressive Democrats all year, and along with Arizona Democratic Sen. Kyrsten Sinema refused to reform the filibuster for voting rights legislation, leading Klobuchar’s last voting rights bill to lose a vote in the Senate.

The bipartisan group has divided its work into five sub-groups – reforming the 1887 Electoral Count Act, protecting election workers, voting practices and rights, the election assistance commission and presidential transitions. Collins and Manchin have emphasized an overlap with Klobuchar’s bill as well. They want to clarify that the vice president’s role in elections is ceremonial and increase the number of lawmakers needed to support an objection in order to force a vote.

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This Senate group has a similar composition to the core group of lawmakers that drafted the $1 trillion infrastructure bill, so they’ve shown that they have the ability to get something done in the 117th Congress already.

Is the bill a direct response to Trump’s comments?

Although Congress has been talking about reforming the Electoral Count Act for a while now, former president Trump may have unwittingly given elected officials the motivation they needed to do something about it.

Former President Donald Trump
REUTERS/Shannon Stapleton
Former President Donald Trump
On Sunday night, Trump released a statement from his Save America PAC, saying he wanted to overturn the 2020 election and falsely claimed it was the vice president’s “right.” Trump also suggested that the effort to reform the Electoral Count Act as proof that Pence did have the authority to overturn the 2020 election.

If the Vice President (Pence) had ‘absolutely no right’ to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?” Trump asked in the statement.

“Actually, what they are saying is that Mike Pence did have the right to change the outcome, and they now want to take that right away,” he added. Trump also said Pence “unfortunately” did not “exercise that power,” and Pence “could have overturned the Election!”

Legislation in Congress is often quite momentum-driven, so this statement from the former president could have some sway on this bill.

“I want to underscore the fact that the vice president and Congress are not supposed to have a serious role in picking the president of the United States,” Schultz said. “The Electoral Count Act comes in as a supplement, but still envisioning an incredibly limited role for Congress in determining elections.”