House Moves to Update Electoral Count Act to Avoid Jan. 6 Repeat
COngress is close to passing legislation to prevent another attempt at insurrection, like January 6, 2021. But first, the Senate and House must resolve differences about how to update the 135-year-old law Donald Trump and his supporters attempted to use in their attempts to overturn the presidential election.
Rep. Liz Cheney, a Republican from Wyoming and Rep. Zoe Lofgren, a Democrat from California were the members of the House Committee investigating the Capitol Attack. They introduced legislation to amend the Electoral Count Act. In July, a bipartisan group of Senators presented a similar bill.
“We were very aware of making the bill as focused and specific and narrowly drawn as possible, so that it helps to ensure that we’re protecting future presidential elections and the rule of law,” Cheney, the vice chair of the Jan. 6 panel, told reporters on Tuesday.
House Speaker Nancy Pelosi quickly vowed to hold a vote on the measure this week, setting in motion a process for both chambers to hammer out a compromise this year that can make it to President Joe Biden’s desk.
It’s not yet clear whether legislators can pass a bill before Oct. 1, when Congress breaks for recess and all eyes turn toward the midterms, especially amid a concurrent scramble to pass a continuing resolution this month to prevent a government shutdown. However, the race for reform is underway to correct the legislation that Trump’s aides cited as part of their plot to overthrow the election. This fall could be the final chance to pass any bill to amend the ECA. With Democrats preparing for the possibility of losing control of either one or both of Congress’s chambers in January and Republicans opposing efforts to update it, lawmakers may not have another shot at passing such legislation before next year’s presidential election.
Sen. Amy Klobuchar, Democrat of Minnesota, and the chair of the Senate Rules Committee, tells TIME she plans to hold a markup next week on the Senate’s version to work on “additional improvements” that will “strengthen the bill”—a process that lawmakers may use to settle on language that is passable in each chamber. “There is momentum in both the Senate and House to pass critical reforms to this antiquated law, and I am confident that we will be able to come together to get this done,” Klobuchar says.
The House proposal (called the Presidential Election Reform Act) and the Senate bill were both passed. The July proposals by Joe Manchin, Democrat, West Virginia and Susan Collins of Maine were designed to make it more difficult for any future presidential candidate or their allies, or argue that a small number of officials can change the results of the Electoral College. However, the proposals have subtle differences.
The two bills have differences in how many members of Congress are required to vote against the certification by the Electoral College. At the moment, one member is required for each chamber. The House version would raise the threshold to one-third of each chamber’s members, whereas the Senate version sets the bar lower—at one-fifth of the House and Senate.
Rick Hasen (a UCLA professor of law and election expert) reviewed each bill to determine if the House bill has any other criteria that could be used by a legislator for an objection. The Senate bill “basically silent on the grounds for objection, because that’s kind of a general statement,” Hasen tells TIME.
The two measures have significant similarities. They both reaffirm the fact that the vice-president plays no role in the certification process of the Electoral College.
One of the architects of Trump’s strategy to stay in office, conservative law professor John Eastman, argued that the ECA gave Vice President Mike Pence the authority to refuse to certify Joe Biden as the winner—a view soundly rejected by the vast majority of legal scholars.
That argument was the basis of Trump’s relentless pressure campaign on Pence to block the peaceful transfer of power—which Pence resisted—and became a focal point for the mob of his supporters who stormed the capitol chanting “Hang Mike Pence!”
Learn more: Trump Turns Down Multiple Requests for Call-Off Mob. Jan. 6 Panel Information
The House and Senate versions would also set other rules to ensure that state and elections officials can’t override the will of their voters. It is illegal for states after Election Day, to change their electoral procedures to favour one candidate.
“The legislation makes clear that the electors in each state have to be selected in a manner that is determined prior to the election,” Cheney says. “Those rules cannot be changed after the fact if state legislators don’t agree with the outcome of the election.”
Cheney-Lofgren is one of a number of proposed legislations that came out of Jan. 6. The committee is preparing to hold its next hearing in Sept. and publish a final report late in the year. This will include narrative details and recommendations for preventing another coup attempt.
TIME was informed by Stephanie Murphy, Democrat of Florida, who is a member the Jan.6 committee. She said that the proposals would be broad and multifaceted.
“It really runs the spectrum from recommendations related to elections to recommendations related to the protection of the Capitol in law enforcement—even the minutiae of how we do it, cameras and surveillance at the Capitol,” she said in an interview. “Because in the investigation of the violence on Jan. 6, we ran into a lot of things that could have been done better.”
A growing trend among conservative legal scholars has led to concerns about the “independent state legislature doctrine”, a controversial theory that states can choose electors for the Electoral College, regardless of their voting records.
“It is a big concern of mine,” Murphy says. “Some of our recommendations will be to try to address that.”
Learn more: Adam Kinzinger: Where the Jan. 6 Committee Moves Next
ECA reform is just one way Congress defends American democracy against another insurrection. But lawmakers from both sides have made it a priority to get that done at the earliest possible time, since Republicans will likely regain control in January.
“If you’ve got bipartisan support for it, you should move it forward,” Murphy says, “even if it’s not everything that you want.”
Hasen agrees. He thinks Congress needs to pass an ECA overhaul but that that’s just a start. Congress needs to provide more federal funding to protect election officials, pass new laws to ensure that voting equipment can’t be tampered with, and beef up the penalties for violating election laws.
“Passing a fix to the Electoral Count Act is absolutely central,” Hasen says. “But there’s more work that needs to be done to safeguard our democracy.”
Here are more must-read stories from TIME