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Senate Democrats Unveil Plan To Change Electoral Count Act

Last updated on February 2, 2022

A group of Senate Democrats has introduced a draft of legislation that would amend the Electoral Count Act, the law which sets up the process for counting electoral votes.

In a joint statement Tuesday, Minnesota Democratic Senator Amy Klobuchar, Illinois Democratic Senator Dick Durbin, and Independent Maine Senator Angus King, who caucuses with Democrats, announced the discussion draft, called the Electoral Count Modernization Act. The Act would “update” the Electoral Count Act of 1887.

“In response to the threats to our democracy since the 2020 Presidential election, this legislation seeks to establish clear, consistent, and fair procedures for the counting and certification of electoral votes for the presidency,” the senators wrote. They also issued draft legislation in an effort to inform bipartisan discussions on amending the law.

“Experts across the political spectrum agree that the Electoral Count Act of 1887 needs to be updated to reflect the current realities and threats facing the United States and our election process,” the senators said.“In response, as leaders on the Senate Rules Committee with jurisdiction over federal elections and members of Senate Democratic leadership, we have been working with legal experts and election law scholars to develop legislation that would modernize the framework of the Electoral Count Act of 1887. ”

According to a fact sheet provided by the senators, the bill would:

  • Establish Election Day as the deadline for appointing slates of electors, though it does not preclude early or absentee ballot returns, allowing voters in line to vote, allowing votes to be counted before Election Day, or state election laws.
  • Set a December 20th deadline to conduct election challenges and contests and to complete the final determination of its electoral slate.
  • Gives three days for candidates to file a lawsuit asking to determine an Electoral Slate, in case of a missed deadline, or to challenge any part of the election results.
  • Establishes that the Vice President and the presiding officer of the joint session “have no power to resolve disputes” over the validity of Electoral slates or votes.
  • Provides “specified limited circumstances” for members of Congress to challenge Electors or electoral votes.
  • Raises the threshold for Congress to object to electors, to one-third of the members of both Houses.
  • Raises the threshold to sustain the objection to three-fifths of both chambers.

“We recognize that updating the Electoral Count Act is not a substitute for confronting the wider crises facing our democracy. We continue to support legislation to protect voting rights prior to Election Day, and strongly believe that we must clarify ambiguities in the electoral process after Election Day to truly ensure the will of the voters will prevail,” the senators added. “We stand ready to share the knowledge we have accumulated with our colleagues from both parties, and look forward to contributing to a strong, bipartisan effort aimed at resolving this issue and strengthening our democracy.”

Bipartisan members of Congress had previously entertained plans to amend the act amid the anniversary of January 6th. The Daily Wire reported:

The Hill reports that the effort, which has found footing with Democrats like California Representative and 1/6 committee member Zoe Lofgren, has spread to more moderate voices like Maine Senator Angus King, an Independent who caucuses with Democrats, and moderate Democratic Arizona Senator Kyrsten Sinema. The move has also caught the attention of Republican Senate Leadership.

“Wholly aside from all the other things they’re discussing, this is something that’s worth discussing,” said Senate Minority Leader Mitch McConnell (R-KY), via The Hill.

Senate Minority Whip John Thune (R-SD) added that Senate Republicans believe “that there are some things there that could be fixed,” and that “there’s been some expression of interest” by several members.

“There are several things I think you could [change] if you were looking at doing it,” Thune told The Hill, but he added that “I don’t think anybody’s come to any conclusions.”

Senators have floated several ideas, The Hill reports, including clarifying the vice president’s role in the counting process, and upping the number of votes needed to object to a state’s electoral count from just one Senator and one House member to one-third of both chambers.

“I think the role of the vice president needs to be codified, so it’s clear what that is,” Thune said.

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