“A bipartisan group of senators working to reform the Electoral Count Act has reached a general agreement and is working on legislative text during this work period,” CBS News reports.
The Electoral Count Act is a proposed United States federal law that adjusts the procedures set out in the US Constitution for the counting of electoral votes following a presidential election.
Mischiefs of Faction explained the origins of the Electoral Count Act:
The presidential election of 1876 was extremely close, with the Democratic candidate, Samuel Tilden, winning the popular vote while the electoral college outcome came down to three contested states: South Carolina, Louisiana, and Florida. In all three states, there were voter intimidation campaigns by southern whites against African-Americans, while Republicans used control of state vote-counting boards to throw out Democratic votes.
As noted by the pro-Trump senators, Congress responded by creating a 15 person commission. The 8 to 7 Republican majority on this commission decided that the Republican candidate, Rutherford Hayes, had won all three contested states.
Some histories of this election end here, but the commission’s decision did not end the controversy. As I discuss in Filibustering (pages 70-71), House Democrats rejected the commission’s seemingly partisan recommendation and began to filibuster the electoral vote count process in the U.S. House by making dilatory motions. Had they continued, they could have blocked the election of Hayes and provoked a constitutional crisis. Their filibuster ended through a combination of backroom deal-making and strong-arm parliamentary tactics by House Speaker Samuel Randall (D-PA), who had the political courage to prioritize the legitimacy of the constitutional process over short-term political expediency. The “deal” was the so-called Compromise of 1877: Democrats would acquiesce to Hayes’ election in exchange for the withdrawal of federal troops from southern states, control of postal service patronage jobs, and support for railroad expansion in the South.* To the extent that Democratic obstruction led to this compromise, it was one of the most consequential filibusters in American history.
The Act aims to minimize congressional involvement in election disputes, instead placing the primary responsibility to resolve disputes upon the states. The Act sets out procedures and deadlines for the states to follow in resolving disputes, certifying results, and sending the results to Congress. If a state follows these “safe harbor” standards and the state’s governor properly submits one set of electoral votes, the Act states that that “final” determination “shall govern.” However, making or use of “any false writing or document” in the implementation of this procedure is a felony punishable by 5 years imprisonment by 18 U.S. Code 1001 under Chapter 47 Fraud and False Statements. The Act thus relegates Congress to resolving only a narrow class of disputes, such as if a governor has certified two different slates of electors or if a state fails to certify its results under the Act’s procedures. Congress may also reject votes under the Act for other specific defects, such as ministerial error, if an elector or candidate are ineligible for office, or if the electoral college votes were not “regularly given.”
The central provisions of the law have not been seriously tested in a disputed election. Since the bill was enacted, some have doubted whether the Act can bind a future Congress. Since the Constitution gives Congress the power to set its own procedural rules, it is possible that simple majorities of the House and Senate could set new rules for the joint session. In the contentious 2000 presidential election, the law’s timing provisions did play a role in court decisions, such as Bush v. Gore. The law has been criticized since it was enacted, with an early commenter describing it as “very confused, almost unintelligible.”: 643 Modern commenters have stated that the law “invites misinterpretation,” observing that it is “turgid and repetitious” and that “[i]ts central provisions seem contradictory.”: 543
Under the Twelfth Amendment, the vice president (as President of the Senate) opens the electoral certificates. The act clarifies the vice president’s limited role in the count. Both houses can overrule the vice president’s decision to include or exclude votes and, under the Act, even if the chambers disagree, the governor’s certification, not the vice president, breaks the tie.
Currently, a group of Republican and Democrat senators are working together to adjust the act so that Americans can never challenge a disputed or stolen election in the future.
The proposed rules will require 20% of Congress, the House and Senate, to challenge the results from any state.
This makes it extremely difficult to challenge future stolen elections.
CBS News added:
The group met on Wednesday night to discuss changes to the law, which governs the way Congress counts and certifies votes from the Electoral College after each presidential election.
“We had an excellent meeting last night where we resolved almost all of the issues,” Republican Sen. Susan Collins, of Maine, said Thursday.
Collins said the group has already drafted language that would make clear that the vice president’s role is ministerial in the process of counting Electoral College votes. The new language also raises the threshold for triggering a challenge to a state’s slate from one member in each chamber to 20% of the members in each body. There would be a majority vote for sustaining an objection.
“That’s all drafted and agreed to,” Collins said. “There are some other issues that are more complicated that we made a lot of progress on last night.”