A group of Senate Democrats worked quickly during last week’s recess to draft elections reform legislation, setting a bar for the other, bipartisan group that’s still in the organizing phase of creating their own version. On Tuesday, Maine’s independent Sen. Angus King, Senate Rules Committee Chairwoman Amy Klobuchar (D-MN), and Senate Majority Whip and Judiciary Committee Chair Dick Durbin (D-IL) released a discussion draft of their legislation, the Electoral Count Modernization Act.
In a statement, the three senators said they had worked with “with legal experts and election law scholars” from “across the political spectrum” to “establish clear, consistent, and fair procedures for the counting and certification of electoral votes for the presidency” and address the ambiguities in the 1887 Electoral Count Act.
“With Congress reconvening after its January state work period, we thought this was the proper time to share the draft legislative text that we believe serves as a foundational outline for key reforms that address the shortcomings of the 1887 law,” the senators said in a joint statement. “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 legislation would clarify that the vice president’s role in overseeing the formal counting and certification of presidential elector votes is purely ceremonial. It also puts a much greater onus on meddlesome members trying to overthrow an election by requiring one-third of each body—the House and the Senate—to object to a state’s slate of electors. Right now, a single lawmaker in each chamber can object. The draft legislation would also set the threshold for upholding an objection at three-fifths of members in each chamber, instead of the current simple majority. It would also specify a limited set of grounds for those objections to be raised.
Those are the mechanics of the electoral count part of the legislation, but the legislation would also try to prevent partisan bad actors in the states from hijacking the process. It would prohibit state legislatures from appointing electors after Election Day, to prevent the appointment of electors who would try to overturn election results. It extends the deadline until Dec. 20 for states to complete recounts and for any litigation over the election result to be resolved. It would allow “limited judicial review” for ensuring that the electors appointed by a state “reflect the popular vote results in the state.” In other words, it provides another layer of protection—judicial—to protect the integrity of the count in states.
The final bit of the proposed legislation, outlined here, even Trump-proofs the process by ensuring that the General Services Administration (GSA), which is tasked with the job of overseeing the transition between administrations, does its job. That answers issues raised in a report issued last week by nonprofit Partnership for Public Service’s Center for Presidential Transitions, reviewing the delays and confusion created by Trump’s refusal to accept the election results.
“The events of 2020-21 revealed longstanding areas of fragility in the presidential transition process,” said the report. “While the Trump White House and federal agencies worked hard to meet the statutory transition planning requirements during the pre-election period, Trump’s doubts about the integrity of the election and, in some instances, the lack of cooperation from his administration after the election exposed areas where norms and precedents were not enough to ensure a seamless transfer of power.”
The legislation sets an absolute deadline of Dec. 20, if not earlier, for the administrator of the GSA to declare the apparent winner of the election and begin GSA support for the transition. Normally, the GSA administrator signs the paperwork kicking off a presidential transition as soon as the winner is apparent. Trump’s appointee refused to do that. That delayed the release of $9.9 million for the salaries and administrative support—office space, email addresses, keys to the computers systems—for the Biden team to start building his administration.
Dec. 20 is a long deadline. Usually the process starts immediately after the media declares the winner, even before states start certifying. But the Democrats’ proposed legislation would clarify that the GSA administrator has an official, nonpartisan role in declaring the winner for purposes of the transition, and cuts off support for the losing candidate.
At the same time, the 16-member bipartisan group headed up by Maine Republican Sen. Susan Collins—she who even now refuses to rule out supporting a Trump run in 2024—and West Virginia Democratic Sen. Joe Manchin is slowly cranking up. The gang also includes Sen. Kyrsten Sinema, Democratic spoiler of democracy. Make no mistake about the intentions of the Republicans here: They are following the playbook they set up in fighting Biden’s massive infrastructure plans. Splinter the Democrats and peel away the moderates, then delay, delay, delay.
The frustrating thing is that those gullible moderate Democrats fall for it. Every damned time. Take, for example, Delaware Sen. Chris Coons, who tells CNN this is going to take weeks and weeks, if not months. “We are at the beginning stages,” he said, and he seems to be absolutely fine with that, not recognizing that he’s part of the Republican scheme to grind this on so long they end up with nothing.
Supposedly, this bipartisan gang is going to look at broad reforms. They “divided their work into five sub-groups: reforming the 1887 Electoral Count Act; protecting election workers; voting practices and rights; the election assistance commission; and presidential transitions.” But they’ve barely begun talking. King, Klobuchar, and Durbin have at least kicked them into gear a little bit. Collins says that they could be meeting with Klobuchar as soon as Wednesday to talk about the potential legislation. The Rules committee has jurisdiction over the legislation.
If Collins could be trusted, bipartisan voting rights and elections reforms would be fantastic. But we’ve been through this game far too many times already. Majority Leader Chuck Schumer has blessed the efforts of all gangs, but it feels like it’s just one more attempt to prove to Manchin Sinema that Republicans aren’t working in good faith here, and that there’s really only one way to restore free and fair elections: nuking the filibuster. Maybe the umpteenth time will be the charm.