Staff members hold the certification of Electoral College votes from...

Staff members hold the certification of Electoral College votes from Tennessee during a joint session of the House and Senate to confirm Electoral College votes on Jan 7, 2021, in Washington, D.C.. Credit: AP/Andrew Harnik

WASHINGTON — Congress took its first major steps last week to pass legislation to revise the antiquated Electoral Count Act of 1887 as members of both parties said they wanted to avoid repetition of the 2020 presidential election.

Lawmakers expressed a sense of urgency in fixing the 135-year-old act after former President Donald Trump tried to exploit its ambiguous language to stay in power and his supporters’ attacked the Capitol building on Jan. 6, 2021, to disrupt certification of President Joe Biden’s victory.

Last Wednesday, the U.S. House, in a largely partisan 229-203 vote, passed a bill favored by Democrats that tightens the act.

Nearly all Republicans voted against it, saying Democrats excluded them from the process and pushed it through to boost their chances in the midterm elections Nov. 8.

Many Republicans prefer the Senate's version.

Last Thursday, the bipartisan Senate legislation picked up two more sponsors before a Senate Rules Committee working session and vote scheduled for Tuesday. That sets it up for consideration on the Senate floor, which could happen before or after the Nov. 8 elections.

Senate Majority Leader Chuck Schumer (D-N.Y.) is working with supporters of the Senate version, including sponsors Susan Collins (R-Maine) and Joe Manchin (D-W.Va.), Schumer spokesman Angelo Roefero told Newsday.

For the past two years, members of Congress, constitutional scholars and advocacy groups have identified at least four weaknesses in the Electoral Count Act, and both the House and Senate bills attempt to address them.

Here are questions and answers about the act and proposals to fix it.

What is the Electoral Count Act?

The law controls the process for appointing electors for president, certifying and transmitting electoral votes to Congress, opening and counting the votes and resolutions of disputes, according to the Brennan Center for Justice at NYU Law School, a nonpartisan policy and law institute.

Congress passed the act to create a process to settle disputes a decade after Republican Rutherford B. Hayes and Democrat Samuel Tilden deadlocked in the 1876 presidential vote amid controversies about some states' slates of electors.

Hayes won by offering to remove troops from the South, which began the Jim Crow era of racial segregation and oppression.

What is wrong with the Electoral Count Act?

Its language is archaic, convoluted and unclear. One sentence is 275 words long, with 21 commas and two semicolons.

The ambiguities had not mattered as long as losing presidential candidates conceded defeat, even if they complained about voting irregularities.

Trump, in his refusal to accept defeat and insisting that Democrats stole the election, exposed the act’s flaws.

What key fixes do the House and Senate bills propose?

While the bills have differences, both focus on four main aspects of the Electoral Count Act: the role of the vice president, objections by members of Congress to electoral slates, eliminating "fake electors" and limiting the circumstances for declaring “failed elections” in states.

Defining the vice president’s role

The 12th Amendment says the vice president, who serves as president of the Senate, shall “open all certificates and the votes shall then be counted.” The Electoral Count Act says that after tellers count the votes, the vice president shall “announce the state of the vote.”

But based on an interpretation by former law professor John Eastman that the vice president could toss electors, Trump and top aides pressured Pence to use his role as president of the Senate to throw out contested state slates of electors. Pence refused.

Both bills state clearly that the vice president performs only a “ministerial role” in overseeing the certification of the electoral vote, and nothing more.

Limiting lawmakers’ objections

Under the Electoral Count Act, both a House member and a senator can jointly raise an objection to a state’s slate of electors based on whether it was certified lawfully.

Some lawmakers have tried to raise objections in many of the past certifications of the presidential vote, often as protests.

Yet Republican Trump supporters planned to object to six state slates, enough to tie up the certification, After the riot, they objected to two slates.

Both bills would make it harder to raise objections, narrowing the grounds and increasing the number of lawmakers needed. The Senate bill sets the threshold at one-fifth of each chamber; the House puts it at one-third of each.

Blocking "fake electors"

Trump supporters created an alternative slate of electors — dubbed “fake electors” because they had no legal standing — to the slates legally elected in a bid to tie up the electoral vote count in at least four states.

The Electoral Count Act has a process for determining the officially approved slate of electors. But the House and Senate bills would ensure only Congress counts the electoral votes — and, as the Senate measure puts it, ensures the existence of one “single, conclusive slate of electors.”

Both bills require each state’s governor to submit the electors, and creates a legal process if a governor refuses to submit a slate or if a presidential candidate challenges it.

Defining “failed elections”

Although Trump did not try to use it, lawmakers and experts said they feared a candidate could exploit an 1845 federal law allowing state legislatures to override the popular vote by declaring a “failed election.”

To fix that flaw, the Senate bill requires a state to appoint electors on Election Day, and provides flexibility for state laws to extend voting because of “extraordinary and catastrophic” events.

The House bill also requires Election Day appointment of electors. But it allows a state to extend voting for five days in case of a “catastrophic event,” defined as “a major natural disaster, an act of terrorism, or a widespread power outage.” A panel of judges must OK the extension.

The core concept

“The core concept is the peaceful transfer of power,” Sen. Angus King (I-Maine) said at a Senate hearing on the legislation this year.

“And underlying that is a clear set of rules and principles that people can all understand and accept in advance,” he said. “And then it's a mechanical process of counting the votes, determining who gets the electoral votes in a particular state, and then having Congress meet and count those votes, as has been done in the past, more or less routinely.”

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