Unpacking bipartisan efforts to reform the Electoral Count Act

A bipartisan bill to reform the Electoral Count Act of 1887 is underway.

But is it enough to prevent another Jan. 6th?

Democracy scholar Matthew Seligman says Congress has a narrow window of time to pass the legislation.

"It's a loaded gun and it can be something like a sniper shot at the heart of American presidential democracy," Seligman says. "And so, I think it is absolutely critical that Congress pass this legislation."

Today, On Point: A look at what’s inside the proposed Electoral Count Reform Act.

Matthew Seligman, fellow at the Center for Private Law at Yale Law School. (@Matt_Seligman)

Derek Muller, professor of law at the University of Iowa College of Law. (@derektmuller)

Jack Beatty, On Point news analyst. (@JackBeattyNPR)

Sen. Chris Murphy, Democratic U.S. senator from Connecticut. (@ChrisMurphyCT)

Last week, a bipartisan Senate working group finally unveiled the Electoral Count Reform Act of 2022. Senator Chris Murphy of Connecticut is one of the bill's co-sponsors. How does he think the Electoral Count Reform Act remedies the vulnerabilities exposed by January 6th?

SEN. CHRIS MURPHY: One of Trump's legal theories was that the existing Electoral Count Act allows state legislatures to declare that the election wasn't completed. And Trump suggested that claims of fraud would be enough to declare an election incomplete. That's not the drafters intention, back from the late 1800s. What they meant was if, you know a natural disaster prevented an election from moving forward, then the state legislature could come up with a different process by which to hold that election again, or have the will of the voters expressed through the choice of electors.

We again make the original intent of the bill pretty clear that only in the case of a natural disaster, of an election actually being interrupted, does the state legislature have any authority to step in and decide what happens next. The state legislature can't just say, Well, I heard that there was fraud in precinct or precinct B, so the state legislature is now going to step in and decide who the electors are. That absolutely cannot happen under our bill. Trump argued that it could happen under the previous law.

MEGHNA CHAKRABARTI: The bill has [nine] Republican co-sponsors. What do you think that indicates about their level of concern about that period of vulnerability between November and January?

MURPHY: There still are many senators who deeply worry about President Trump's continuing efforts to try to put himself in power no matter whether he wins or loses the election. And so we've been able to work pretty well with a number of high profile Republicans. The intention is to make it harder for President Trump and his allies to try to steal the election in 2024. And I think that we will have enough Republican support in the end in the Senate to get it passed. And my hope is that the House will take it up and get it done by the end of the year, before the 2024 campaign season begins.

CHAKRABARTI: In my mind, it's not even just 2024. The intention should be to strengthen this process for every presidential election to come. Because once we've seen how it can be disrupted, there's always the risk of it happening again without these modifications.

MURPHY: I think many of us were hopeful that this bill would go beyond just the reform of the Electoral Count Act. I certainly think that there are other infirmities in federal election law that allow states to deny the right to vote. We put a lot of those changes on the table, but in the end, we agreed that changing The Electoral Count Act by itself was so important that we should move forward with that project, and set aside some of the discussions on broader voting rights changes for another day.

CHAKRABARTI: When you put out on Twitter that the bill was being released as a bipartisan effort, lots of folks tweeted back at you saying, Well, this seems like small potatoes to them. Because it's not really going to get at any of these bigger problems that are really shaking the foundations of our democracy. So, like, why bother? And you had pretty strong responses to that.

MURPHY: Yeah. I mean, I'm just not somebody that believes you always let the perfect be the enemy of the good. This bill was good. And I want people to understand that, you know, this is not a problem in our rearview mirror. President Trump is learning from the mistakes he made in the lead up to January 6th, and he is constructing a coalition that will be able to successfully steal the election in 2024.

And so what he's doing is getting his allies installed, as governors and as secretaries of state, so that even if he loses an election in a place like Pennsylvania or Arizona, his allies, the governors and the secretary of state, the individuals who decide which electors get sent to Washington, will choose his electors.

Here's what's going to happen. The Democrats are going to win a state like Arizona. The governor and the secretary of state who are Trump allies of that state will say, Nope, we believe that there is some fraud. We won't pinpoint exactly what it is, but we think it's enough to instead send Donald Trump's electors to Washington, D.C.

That's the exact plan that Trump is trying to put into place, and we've got to have a plan to guard against it. That's what the Electoral Count Reform Act is all about.

CHAKRABARTI: But does the Electoral Count Reform Act do anything to get that deep into how states run their elections? I mean, the federal government can't do that.

MURPHY: All we can do is create a process to make sure that states follow their own laws. Remember, the Constitution actually says it's up to the states how they choose their electors. Every state has decided to award its electors to the winner of the popular vote. But it is true a state tomorrow could decide to award their electors to the candidate whose last name has the most number of letters. That is all up to the states.

All we can do is create a process that holds the state to the law that they've written. And right now, every state says the winner of the popular vote gets our electors. We can create barriers to states trying to walk away from that commitment.

CHAKRABARTI: So what do you think the consequences might be if, you know, by November or by the end of this legislative session, the reform bill does not get through?

MURPHY: I mean, this is a really important reform, but it's a fairly narrow reform. And I think it's important for us right now to show that Democrats and Republicans can find common ground, agreement, on cleaning up democracy to make sure that another January 6th doesn't happen. If we fail, it's a pretty awful message to the country. But it also just keeps our election laws open and vulnerable to attack in the next presidential election.

And we just frankly know that attack is coming. President Trump has not been shy in making clear that he believes he won the 2020 election. And if he loses the 2024 election, he'll believe he won that, too. So we need to be eyes wide open about the threat that's coming.

CHAKRABARTI: You said it in even stronger terms in your floor speech. You said the threat that 2024 will be the last year of American democracy. The last year of American democracy is real.

MURPHY: I think it is. And I don't want to suggest that the Electoral Count Reform Act is what saves American democracy. What this bill does is it sets up some additional barriers to a candidate trying to steal an election, but it cannot prevent a candidate from doing that.

If a state legislature or a handful of state legislatures, the federal courts and a presidential candidate and the Congress are aligned, then there's no law that can stop an election from being awarded to a losing candidate. So this bill makes that harder.

But I also want to make it clear it is up to human beings in the political system to decide to comply with the law, to only support the winner of an election being seated in power. That will be dispositive on whether we hold on to our democracy.

On John Eastman's memo outlining how Vice President Pence might change the outcome of the 2020 election

Matthew Seligman: "Professor Eastman's theory of how Vice President Pence could alter the results of the election was based on the interaction between the 12th Amendment to the Constitution and the Electoral Count Act. So the 12th Amendment to the Constitution was ratified in 1804, and it's the version of the Electoral College that we have right now.

"And there's a critical sentence in the 12th Amendment. And it says that the president of the Senate, who is usually the vice president, shall, in the presence of the House and Senate, open the certificates, and then the votes shall be counted. And you'll notice in the end of that sentence, it's in the passive voice. It doesn't tell us who does the counting of the votes. And Professor Eastman latched on to this grammatical ambiguity, and advanced the theory that this sentence of the 12th Amendment meant that Vice President Pence had unilateral power to resolve disputes about electoral votes, to reject a state's electoral votes on the basis of some allegation of fraud. Or to, as it was often said at the time, to, quote, send it back to the states, for states to somehow redo their appointment of the electors.

"Now, that's just inconsistent with what the electoral context says. The Electoral Count Act sets up a process for how Congress counts the electoral votes from each state. And as part of that counting process, how to resolve disputes about electors. And Professor Eastman argued that, well, whatever the Electoral Count Act of 1887 says, that's just unconstitutional. So he had some other arguments as well about how, within the electoral count, perhaps it could be manipulated. But Professor Eastman's argument was based on this truly wild constitutional theory that the 12th Amendment gave the vice president the unilateral power to decide the results of the presidential election."

Isn't the Electoral Count Act, as it exists from 1887, straightforward enough on that point?

Derek Muller: "You would hope so. I mean, when you read the Electoral Count Act, there's no question that sometimes these questions do arise about what happens if the vice president receives multiple submissions from states competing slates of electoral votes. At what point should they properly present them to Congress? At what point should the Vice President not present them to Congress? Does the Vice President have any role in saying there's a lack of a quorum present? Does the Vice President have any role in determining whether or not an objection is in order or not?

"So there are potentially ambiguities even within the existing Electoral Count Act. I think you're certainly right to say the vice president doesn't have the unilateral authority to throw out electoral votes. That's truly beyond the pale. But there are other uncertainties about how that sort of dance or process works inside of Congress.

"And so a number of clever mechanisms in this bill are designed to ensure that there's going to be one set of electoral votes submitted to Congress, clear rules about how to identify that true single set of electoral votes. And then that reduces any questions or potential discretion that otherwise the vice president might try to exercise in that forum. So it helpfully clarifies it. And again, given some of the ambiguity, I think any increase in clarity is helpful public guidance going forward."

On the objection threshold that would be raised under the reform proposal

Matthew Seligman: "So the proposal that's been released so far raises that threshold to 20% of the Senate and 20% of the House. And so that would be significantly higher than the threshold that we see right now. And indeed, that threshold, that raised threshold, would not have been met on January 6th of 2021.Because although there was more than 20% of the House of Representatives signed on to the objections to the electoral votes from Arizona and Pennsylvania, there were only seven or eight senators who did so.

"So the objections in 2021 would not have met that threshold. And that really makes a big difference. One of the tragedies of January 6th ... is that we saw how political grandstanding around the electoral count can lead to really dangerous places, and tragically to violent places. It's important to remember that under the Electoral Count Act, there was absolutely no possibility that those objections were ultimately going to succeed.

"And the reason is because the House of Representatives was controlled by Democrats. And indeed, there was a large majority of of Democrats and Republicans in the Senate that were going to vote against those objections. So it was always clear, from well before January 6th, and indeed on the morning of January 6th, that these objections were going to fail. But nonetheless, politicians made the decision to make those objections, and that was political grandstanding.

"And the people standing on the steps of the Capitol took that as a cue, and that led to violent, dangerous places. So changing the law, so the objection threshold is higher, which will prevent this type of political grandstanding when there's really only a very small minority of members of Congress who support an objection. Well, it can head off that political grandstanding, and it can avoid the misimpression among the public that there's a real, live, genuine dispute about the counting of electoral votes, when really there's not."

Are you concerned that whatever Bill might come out of the House would end up being unpalatable to the required senators needed to get it through the Senate? 

Matthew Seligman: "I think that is a concern. You know, the House and the Senate, for the entire history of our nation, have been in a rocky marriage. And I hope that the well-meaning ideas of members of the House of Representative, who want so many important reforms, that that won't get in the way of getting this.

"So critics will point out that there are so many important things that this bill doesn't do. It doesn't do anything at all to protect voting rights. It doesn't address campaign finance reform. It doesn't address political partisan gerrymandering, which is, you know, in my view, the other great threat to American democracy. And for that matter, it doesn't abolish the Electoral College and institute a national popular vote.

"And the critics are right. It does none of those things. But those things aren't on the table. There was a massive push. Every political effort was put into trying to enact comprehensive federal election reform legislation back in January. And there is simply insufficient political support in the Senate for that to happen right now. So in advance of this next election cycle, we face a choice.

"And the choice is whether we enact the Electoral Count Reform Act, or something close to it. Something, you know, there's still time to to make modest revisions to improve it. Whether we enact that, or we enact nothing. And nothing is such a dangerous and catastrophically risky option. That I hope, and I ultimately trust, that members of both parties of Congress will recognize that that's just something that's too risky to let leave on the table — these risks of catastrophic political manipulation."