Senate passes Electoral Count Act overhaul in response to Jan. 6 attack

A bipartisan bill that would change how members of Congress could object to electoral votes — Congress’s response to the Jan. 6 insurrection — passed the Senate on Thursday as part of sweeping spending bill to fund the government.

The Electoral Count Reform and Presidential Transition Improvement Act, sponsored by Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.), would amend the Electoral Count Act of 1887 and reaffirm that the vice president has only a ministerial role at the joint session of Congress where electoral college votes are counted. The measure also would raise the threshold necessary for members of Congress to object to a state’s electors.

The bill was driven by the Jan. 6, 2021, attack on the Capitol, when a mob of President Donald Trump’s supporters sought to stop the certification of Joe Biden’s win. Lawmakers have warned a similar effort could disrupt future electoral counts without changes to the process.

The measure was attached to the spending bill that the Senate passed on a bipartisan vote of 68-29 and sent to the House, where it could be cleared and sent to President Biden as early as Thursday evening.

In a joint statement Thursday, Collins and Manchin welcomed the bill’s passage and noted that it was the result of nearly a year of bipartisan negotiations.

“Our bipartisan group worked tirelessly to draft this legislation that fixes the flaws of the archaic and ambiguous Electoral Count Act of 1887 and establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President,” the two said. “We are pleased that our legislation has passed the Senate and are grateful to have the support of so many of our colleagues. We look forward to seeing this bill signed into law.”

Both Majority Leader Charles E. Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) came out in support of the legislation in September. In an op-ed for the Courier Journal published Monday, Sen. Rand Paul (R-Ky.) said he also supported the bill, writing that the electoral college “is a friend to those who believe in limited government.”

Sen. Amy Klobuchar (D-Minn.), chairwoman of the Senate Rules Committee, noted in a statement Tuesday that the bill had passed out of that committee on a 14-1 bipartisan vote.

“The Electoral Count process was never meant to be a trigger point for an insurrection and that is why we are reforming it,” Klobuchar said. “We are now one step closer to protecting our democracy and preventing another January 6th.”

The House passed a similar bill in September that aimed to stop future presidential candidates from trying to overturn election results through Congress, similarly citing the Jan. 6 insurrection.

After the 2020 election, Trump falsely told his supporters that Vice President Mike Pence had the power to reject electoral votes already certified by the states. Pence did not do so — and has repeatedly emphasized that the Constitution provides the vice president with no such authority. But on Jan. 6, 2021, many in the mob that overran the Capitol began chanting, “Hang Mike Pence!” on the mistaken belief that the vice president could have stopped Congress from accepting Biden’s victory.

Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), who wrote the House’s version of the bill, argued that the risk of another effort to steal a presidential election remains high, as Trump continues to spread baseless claims of widespread election fraud and as pro-Trump candidates in state and local elections around the country embrace those falsehoods.

The Senate and House bills differ chiefly in how much they would change the threshold necessary for members of both chambers to object to a state’s results. Currently, objecting to a state’s electors requires only one member each from the House and the Senate. The House bill would raise that requirement to at least one-third of the members of both the House and the Senate, while the Senate version would raise the requirement to at least one-fifth of the members of both the House and the Senate.

The Senate bill would also strike a provision of an “archaic 1845 law” that could be used by state legislatures to override their states’ popular votes by declaring a “failed election,” a term not defined by law, according to a summary of the bill from Collins’s office.

“Instead, this legislation specifies that a state could move its presidential election day, which otherwise would remain the Tuesday immediately following the first Monday in November every four years, only if necessitated by ‘extraordinary and catastrophic’ events,” the document notes.

Unlike the Senate bill, the House bill — which passed in a 229-203 vote — had little support from GOP lawmakers. Only nine Republicans joined Democrats in voting for it, and none of those nine will be members of Congress next year — either because they lost their primaries or chose to retire. Several of the Republicans who opposed the bill, including House Minority Leader Kevin McCarthy (Calif.), criticized it as unconstitutional.

McConnell has called the House bill a “non-starter” because of its lack of support from GOP lawmakers.

“It’s clear that only a bipartisan compromise originating in the Senate can actually become law,” he said in September. “One party going it alone would be a non-starter. In my view, the House bill is a non-starter. We have one shot to get this right.”