Three senators released a draft bill Tuesday that would clarify Congress’ role in tallying the presidential election, even as a separate bipartisan group of more than a dozen lawmakers continues working on a broader elections overhaul.
The bipartisan group has divided its workload into smaller teams to seek agreement on a slate of issues, such as protection of election workers, more funding for the Election Assistance Commission, changes to voting practices and rights, and updating the nation’s Electoral Count Act of 1887 for picking a president.
Maine Republican Sen. Susan Collins told reporters Monday night that each group has a Republican and Democratic co-chair, and will begin digging into each area this week before reporting back.
The Electoral Count Act has a new sense of urgency in Washington this week, with former President Donald Trump’s statement on Sunday that Vice President Mike Pence “could have overturned the Election!” during the joint session of Congress to certify the Electoral College results.
Election law experts have warned Congress for years that it would be wise to clarify the Electoral Count Act language. Trump provided fodder with his failed attempt to use that process to stay in office despite losing the election, including holding a Jan. 6, 2021, rally of his supporters that turned into an attack on the Capitol during that counting process.
Some Trump supporters who stormed the joint meeting of Congress that day chanted “Hang Mike Pence.” At the rally, Trump told the crowd that “if Mike Pence does the right thing, we win the election,” and claimed Pence could reject states’ counts and change the result.
Pence said that day he did not have the power to reject slates of electors from states, and wrote in a letter to Congress that “my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”
Collins and West Virginia Democratic Sen. Joe Manchin III will head up the subgroup about changes to the Electoral Count Act. The broader group plans to get back together Friday to measure their progress.
A different group of senators, Illinois Democrat Richard J. Durbin, Minnesota Democrat Amy Klobuchar and Maine independent Angus King, made public Tuesday the provisions they have crafted in that area.
Durbin has sway over the process as chairman of the Senate Judiciary Committee. Klobuchar is a member of that panel as well, and serves as chair of the Rules and Administration Committee.
Manchin told reporters on Tuesday that means there would have to be an agreement between Durbin’s group and the larger group working on a broader elections overhaul, and that maybe the bigger group can help overcome a filibuster from opponents of such a bill.
Manchin said his group could show “a broader support of bipartisanship that would give them a little better diagram of what can be accepted or could be done, rather than putting out something that’s not going to succeed with the 60-vote threshold.”
The Durbin-Klobuchar-King draft includes provisions that would curb the power of the vice president in the certification of the Electoral College votes.
“Vague and outdated rules helped fuel false claims that the Vice President or Congress could reject the will of the voters — or that state legislatures could override the popular vote by appointing their own electors after Election Day,” the Durbin group wrote in a summary of its draft.
The vice president no longer would preside over the joint meeting under their proposal. Instead, the president pro tempore of the Senate would, unless that senator is a candidate for president or vice president. If that was the case, it would be the next most senior member of the majority party in the Senate.
The draft bill also clarifies that the vice president and the presiding officer have no power to resolve disputes over the list of electors or the validity of electors.
The Constitution gives the vice president the role of opening envelopes containing the electoral votes from states. The draft bill requires states to seal their certification of votes into an envelope, and then seal that into a separate outer envelope.
The draft bill then outlines a procedure that would mean the vice president has no other powers or role than opening that inner envelope, “and the bill makes clear the Vice President has no power to overturn the will of the voters,” according to the summary.
The broader effort faces political hurdles, such as outside liberal advocacy groups insisting that any overhaul of the electoral count also include voting rights legislation that Republicans have blocked in the Senate.
“My goal is to have a bipartisan bill that can secure 60 or more votes in the Senate,” Collins told reporters Monday. “If we relitigate issues that have already been rejected by the Senate, then I think it would be very difficult for us to reach the 60 vote margin.”
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