Bipartisan Senate bills would overhaul Electoral College count

Objection threshold raised to one-fifth of House and Senate

Sens. Joe Manchin, D-W.Va., and Susan Collins, R-Maine, talk with reporters about election legislation on Jan. 20.  (Tom Williams/CQ Roll Call)
Sens. Joe Manchin, D-W.Va., and Susan Collins, R-Maine, talk with reporters about election legislation on Jan. 20. (Tom Williams/CQ Roll Call)
Posted July 20, 2022 at 12:54pm, Updated at 3:54pm

Corrected 2:36 p.m. | One-fifth of the House and Senate, an increase from the current requirement of a single member in each chamber, would be needed for Congress to consider an objection to a state’s Electoral College votes under proposed legislation released Wednesday by a bipartisan group of more than a dozen senators.

The package would also clarify that the vice president’s role when electoral votes are counted is “ministerial,” and provide that funding for presidential transitions would be provided to candidates even if their election is in dispute.

One of the two bills released Wednesday would update the Electoral Count Act of 1887, the law that governs the acceptance of presidential votes. Some of former President Donald Trump’s legal advisers had argued that Vice President Mike Pence could disregard electors from disputed states when Congress met on Jan. 6, 2021, to certify that Joe Biden had defeated Trump. Pence disagreed with Trump, and some of Trump’s supporters who rioted to try to stop Congress from acting had called for hanging the vice president.

Provisions in the bill would also combat a potential scenario where multiple state officials send slates of electors to Washington. New rules would specify who could send Congress certificates and provide expedited court review for matters related to a state’s certificate identifying its electors.

The measure would also remove a part of an 1845 law that had said state legislatures could declare a “failed election” and specify instead that the date of the presidential election could be moved if there are “extraordinary and catastrophic” events.

Under the bill, new rules for presidential transitions would allow multiple presidential candidates to receive funding without the administrator of the U.S. General Services Administration ascertaining the election’s apparent winner.

Sens. Susan Collins, R-Maine, and Joe Manchin III, D-W.Va., said they had set out to overhaul what they called the “archaic and ambiguous” 1887 law, attracting support from eight more Republicans and six other Democrats.

“We have developed legislation that establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President,” Collins and Manchin said in a statement.

A second bill introduced Wednesday with support from five Republicans and seven Democrats would double the maximum federal penalty to two years in prison for people who are convicted of intimidating or threatening election officials, poll watchers, voters or candidates. The penalty for people who steal, destroy, conceal or alter election records would jump to a maximum $10,000 fine and up to two years in prison.

Tampering with voting systems would become a federal crime, and the laws around preserving electronic election records would be clarified. 

The measure also includes provisions to improve how the U.S. Postal Service handles election mail and guidance to states on how to improve mail-in ballot processes and a five-year reauthorization of the Election Assistance Commission, an independent agency that helps states improve security and administration of federal elections. 

Splitting the bills into two packages was agreed on by the group because, among other reasons, the two bills will likely be destined for different committees, Sen. Thom Tillis, R-N.C., said Tuesday. 

“Some of it’s as much process-driven as having anything to do with what’s in the particular bills,” he said.

Tillis was joined by GOP Sens. Rob Portman of Ohio, Mitt Romney of Utah and Lisa Murkowski of Alaska in co-sponsoring both bills. He was optimistic Tuesday that both bills would be able to garner enough support to clear the Senate.

Democratic Sens. Kyrsten Sinema of Arizona, Jeanne Shaheen of New Hampshire, Mark Warner of Virginia, Christopher S. Murphy of Connecticut, Ben Cardin of Maryland and Chris Coons of Delaware joined Manchin on both bills. 

The bill focused on the ECA overhaul’s next stop is a hearing “in the coming weeks” in the Senate Rules and Administration Committee, Chairwoman Amy Klobuchar said Wednesday. 

While she conceded the ECA must be updated, she also said she hadn’t given up on “pushing to advance other critical protections for our democracy,” like voting rights provisions that Republicans previously blocked.

Nebraska Republican Sen. Ben Sasse, a member of the group and a co-sponsor of the first bill, praised the group’s work and ability to withstand the pressure from some progressive lawmakers who sought to include those election provisions. 

“I’m glad that my colleagues rejected a new federal cause of action that would have been a giveaway to partisan election attorneys, and instead focused on solving real problems,” he said in a statement. 

The bills released Wednesday received praise from some election watchers who raised alarms as the House select committee investigating the Jan. 6 riot highlighted some of the ways Trump tried to stop Congress from certifying Biden’s win.

Rick Hasen, a law professor at the University of California, Los Angeles, and the director of the Safeguarding Democracy Project, said last week that the prospect of patching some of the holes exploited in the last presidential election is a good omen for future ones. 

“Every step that is taken to try to minimize those risks going forward is a positive thing,” he said. “But nobody should be under the illusion that if this thing passes, we’re somehow out of the woods.”

There’s no guarantee that any package of laws will completely eliminate the possibility of election cheating, he said, but Congress can anticipate the unexpected by using institutions like the federal courts to referee future disputes.

“There could be many different kinds of threats,” he said. “And so, the precise way to deal with that is to come up with the least worst decision-maker in the case of a dispute, and probably that’s the federal courts.”

Collins told reporters Wednesday that her goal is to get the bills signed into law by the end of the year. 

As the clock counts down toward the 2024 presidential election season, and the prospect of party control flipping in the House or Senate looms, Hasen says he hopes lawmakers will pass legislation even if it doesn’t completely please everyone.

“This is really the last opportunity before 2024 to pass federal legislation that could help deal with the risk of election subversion,” he said. “Even if it’s not a perfect bill, it might be a considerable improvement.”

The photo caption was corrected to reflect the date that Manchin and Collins spoke to reporters.