Update 625 — Salvaging Democracy:
A Clarifying Sliver of Election Reform
After the eventful news this week, GDP down 0.9 percent in the second quarter, CHIPS passing both chambers, and the new reconciliation package – the Inflation Reduction Act – introduced, we turn to a similarly signal development last week as a bipartisan Senate working group released two bills to reform the Electoral Count Act and safeguard elections. Working since January after the Freedom to Vote: John R. Lewis Act failed to pass, a bipartisan group — including nine Republicans — has arrived at a proposal that clears up ambiguities in the 19th century law and includes resources to secure elections.
While this is nowhere near the comprehensive legislation championed by Democrats that would curtail voter suppression and partisan gerrymandering, it is a step in the right direction. The centrist group produced what they called “simple, common sense reforms.” With this much support on both sides of the aisle, it seems they will be able to get the 60 votes needed. The question is now if there is enough time in Congress’ busy fall schedule ahead of the midterms.
In today’s update we discuss the Electoral Count Reform Act, the Enhanced Election Security and Protection Act and the timeline for this bipartisan legislation.
Good weekends all,
Dana
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Nothing has highlighted the urgency for election reform more than the 2020 election and the Jan 6th attack on the Capitol. Trump and allies like John Eastman were able to exploit ambiguities in the current process and submit objections to electoral college votes based on bogus claims of election fraud. The Electoral Count Reform Act and the Enhanced Election Security and Protection Act are not the democracy reform progressives were hoping for, lacking voting rights or campaign finance provisions, but they are realistic reforms that can get 60 votes in the Senate and will do a lot to prevent election subversion in 2024 and beyond.
A bipartisan group led by Senators Susan Collins and Joe Manchin has drafted these bills. The group is notably composed of more Republicans than Democrats:
| Rob Portman (R-OH) Mitt Romney (R-UT) Lisa Murkowski (R-AK) Thom Tillis (R-NC) Shelley Moore Capito (R-WV) Todd Young (R-IN) Ben Sasse (R-NE) Lindsey Graham (R-SC) | Kyrsten Sinema (D-AZ) Jeanne Shaheen (D-NH) Mark Warner (D-VA) Chris Murphy (D-CT) Ben Cardin (D-MD) Chris Coons (D-DE) |
Electoral Reform
The Electoral Count Reform and Presidential Transition Act modernizes the 1887 Electoral Count Act in a way that creates straightforward instructions for tallying electoral votes. The broad support of all members of the working group, including all nine Republicans — just one short of the required number for cloture — is a good sign for the bill’s prospects.
The Electoral Count Reform Act (ECRA) seeks to ensure each state sends a single conclusive slate of electors to Congress by clarifying several ambiguities in existing law:
- Declaring each state’s Governor is responsible for submitting the slate of electors unless another state official is designated to do so pursuant to state law in effect before election day.
- Allowing for expedited judicial review of claims from presidential candidates regarding a state’s certification of electors.
- Requiring Congress to defer to the slate of electors given by the state’s executive pursuant to the judgments of state or federal courts, preventing the submission of false slates of electors.
- Preventing a state from moving their presidential election day unless there are “extraordinary and catastrophic” events. Since the ECRA’s introduction, some experts have advocated for tightening this definition even further.
The bill clarifies that the role of the Vice President in presiding over Congress is strictly ministerial; they cannot determine the validity of a state’s electoral certificate. This is especially important after Trump called on Vice President Pence to reject the electoral votes on January 6th. The threshold for objections is also increased from just one member from each chamber to one-fifth of the members of each chamber to ensure objections have a broad base of support to be considered.
The Presidential Transition Improvement Act is the second part of the bill, providing guidance to ensure an orderly transfer of power. In the case of a contested election, more than one candidate will receive equal access to federal transition resources if no one has conceded. When the clear winner is determined, only one candidate will receive resources. The legislation also contains new reporting requirements for transitions in contested elections.
On the Plus Side
When the working group was drafting their bills and negotiating for what would be included, there was some momentum to go beyond updating the Electoral Count Act. There are many other issues that affect our elections, and the working group would be remiss not to address them when given the opportunity. While progressives and Democrats hoped for another chance to consider voting rights protections that were defeated by a filibuster earlier this year, it was clear that the Republicans negotiating would not support comprehensive reform. Instead, a tighter bill focused on election security and resources was introduced as the second bill in the package.
The Enhanced Election Security and Protection Act (EESPA) contains four sections:
- Enhanced Penalties to Protect Our Elections Act – Enhances the prison sentence from one to two years for individuals who threaten or intimidate election officials, poll watchers, voters, or candidates.
- Postal Service Election Improvement Act
- Requires the Postal Service to issue best practices for state and local governments for federal election mail each election;
- Standardizes federal mail ballots and processing;
- Appoints at least one election mail advisor per state;
- Postal Service must contact daily ballot sweeps two weeks before and one week after an election;
- Prevents the postal service from creating any slowdowns ninety days before an election.
- Reauthorization of Election Assistance Commission – Reauthorized the Election Assistance Commission from FY 2023 through FY 2027 and requires the EAC to conduct cybersecurity testing to certify voting systems. The EAC was created by the Help America Vote Act in 2002 but expired in 2005. It still receives some funding each year, but this would be a step forward in improving election funding and guidance.
- Election Records Protection Act – Directs the Attorney General and Director of CISA to issue guidance on retaining and preserving election records, both paper and electronic, and increases the penalties for willfully failing to preserve election records.
This bill has fewer cosponsors than the ECRA as only five out of the nine Republican members of the working group signed on in addition to all of the Democrats. Despite less support, this bill is critical to helping secure all federal elections, implementing the resources necessary for our elections to function effectively.
ETA on ECA
Each bill heads to committee for the traditional hearing and mark-up process. The Electoral Count Reform and Presidential Transition Act was referred to the Rules Committee, and the Enhanced Election Security and Protection Act was referred to the Homeland Security and Governmental Affairs Committee. This makes sense due to the different nature of the bills and the jurisdiction of the committees, but separating the bills might make the process more difficult.
The Senate Rules Committee has a hearing on the need to reform the Electoral Count Act next Wednesday, and we can expect more committee action in September. If both bills make it out of committee and have the requisite 60 votes for cloture, it is possible they might be combined on the floor. Passing ECA reform is critical ahead of the 2024 election, but Congress would be remiss not to pass enhanced security measures to safeguard all federal elections.
While most of the action has been in the Senate, the House needs to take up the legislation, too. The House seems apprehensive of the Senate’s proposal. Rep. Jaime Raskin called the Senate’s bill “fine and necessary, but not remotely sufficient to meet the magnitude of the threat against democracy now.” Rep. Zoe Lofgren and Rep. Liz Cheney issued a statement saying the January 6th Select Committee will include legislative recommendations for reforming the Electoral Count Act in their September report. It’s likely their recommendations will differ slightly from the Senate’s, but both chambers will need to agree if the bills are to become law.
Another challenge facing both the House and the Senate is time. The clock is ticking until the midterm elections, which despite bipartisan support, might lower the appetite to tackle election reform. If Republicans take control of either chamber, they will be less likely to want to pass election reform ahead of the 2024 presidential election. Even this modest reform faces an uphill battle against the many priority pieces of legislation that Congress must consider before November. Budget, reconciliation, and more might crowd out the schedule unless this is prioritized. For this Congress, this could be the one chance at political reform.