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House Moves Toward Updating Electoral Count Act, Hoping to Avoid Repeat of Jan. 6

7 minute read

Congress is on the verge of passing a bill aimed at preventing another attempted insurrection like Jan. 6, 2021, but first the House and Senate have to resolve a set of differences over how, exactly, to update a 135-year-old law that Donald Trump and his supporters tried to exploit in their efforts to overturn a presidential election.

Two members of the House committee investigating the Capitol attack, Rep. Liz Cheney of Wyoming, a Republican, and Rep. Zoe Lofgren of California, a Democrat, introduced legislation this week to overhaul the Electoral Count Act. A bipartisan coalition of Senators unveiled a similar bill in July.

“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. But the race is on to mend the statute that Trump and his acolytes cited in their scheme to overthrow the 2020 election. With Democrats bracing for the possibility that they could lose control of one or both chambers of Congress in January, and many Republicans opposed to efforts to update the ECA, this fall may be the last chance for lawmakers to pass any such bill before the next 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.

Both the House proposal, called the Presidential Election Reform Act, and the bill that Sens. Joe Manchin, Democrat of West Virginia, and Susan Collins, Republican of Maine, introduced in July are focused on making it far more difficult for future presidential candidates or their allies to argue that one or a handful of officials can overturn the outcome of the Electoral College. But the proposals do contain some subtle differences.

Most notably, the two bills differ on how many lawmakers in Congress should be required to support an objection to the Electoral College certification. Currently, only one member in each chamber is needed. 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.

The House bill also has a more specific criteria over which a legislator can raise an objection, according to Rick Hasen, a UCLA law professor and elections expert who reviewed the texts of each proposal. The Senate bill is “basically silent on the grounds for objection, because that’s kind of a general statement,” Hasen tells TIME.

Overall, though, the two measures share significant similarities: Both reaffirm that the vice president plays only a ceremonial role in overseeing the Congressional certification 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!”

Read more: Trump Refused Multiple Requests to Call Off Mob, Jan. 6 Panel Details

The House and Senate versions would also set other rules to ensure that state officials can’t override the will of their voters. In particular, they make it illegal for states to retroactively alter their election procedures after Election Day to benefit one candidate over another.

“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.”

The Cheney-Lofgren legislation is the first in a line of proposals to come out of the Jan. 6 committee, which is gearing up to hold its next hearing in September, and release a final report later this year that will lay out its findings in narrative detail and propose recommendations to prevent another attempted coup.

Rep. Stephanie Murphy, Democrat of Florida and a member of the Jan. 6 committee, tells TIME the proposals will be wide-ranging and multi-faceted.

“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.”

One of the major concerns has been a growing movement among conservative legal scholars to cultivate the so-called independent state legislature doctrine, a dubious theory that posits that state legislatures can select electors to appoint to the Electoral College regardless of how their state voted.

“It is a big concern of mine,” Murphy says. “Some of our recommendations will be to try to address that.”

Read more: Adam Kinzinger on Where the Jan. 6 Committee Goes Next

While ECA reform is only one of the ways in which Congress is working to defend American democracy from another insurrection, lawmakers on both sides of the aisle have put a high premium on at least getting that done before the next Congress takes office in January, as Republicans are widely expected to take back control of the House.

“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 shouldn’t stop there. It also 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.”

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