What Happened in the U.S. Senate Committee Hearing on Electoral Count Act Reform
On Wednesday, Aug. 3, the U.S. Senate Committee on Rules and Administration held a hearing on the need to reform the Electoral Count Act (ECA), an 1887 law that governs how Congress counts the Electoral College votes for president every four years. The hearing, hosted by Rules Chairwoman Amy Klobuchar (D-Minn.), came after a bipartisan group of senators unveiled their proposed ECA reform bill. Watch the hearing here and find the live play-by-play below.
The committee called seven witnesses to testify:
- Sen. Susan Collins (R-Maine)
- Sen. Joe Manchin (D-W.Va.)
- Robert Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law
- John Gore, Partner at Jones Day
- Norman Eisen, Senior Fellow at the Brookings Institution
- Derek Muller, Professor of Law at University of Iowa College of Law
- Janai Nelson, President and Director-Counsel at the NAACP Legal Defense and Educational Fund, Inc
Based on written testimony, Manchin, Collins, Gore, Bauer and Muller support the proposed ECA bill as is with minor edits. Nelson and Eisen support the ECA bill but say it doesn’t go far enough to protect democracy.
Wednesday, August 3, 2022
Last updated: 12:39 p.m. EDT
- Klobuchar closes the hearing.
- King asks Nelson about the concern that the process for assigning judges to three judge panels, which is usually done by a chief judge for the circuit court, leads to partisan bias. “Do you agree that random assignment of judges to three judge panels in cases involving presidential elections would reduce the risk or at least the perception of partisan decision making?” Nelson responds: “Yes…This is not to suggest that federal judges are in any way automatically biased by the party or the president who nominated them, but rather to just remove any doubt from the process when we’re dealing with such a consequential electoral dispute.”
- King begins his final questions: “Do you agree that state and federal courts should have authority to review the governor’s certification and that any court orders amending the certification should be conclusive when Congress counts electoral votes?” Gore and Bauer agreed that King’s interpretation is correct.
- Klobuchar shoots back at Cruz: “I am not a big fan of the 1876 election, I wouldn’t have been able to vote, for one thing.”
- Cruz says that it would have been better for Congress to appoint a commission, similar to that in 1877, in the wake of the 2020 election because many Americans “still have deep doubts about the veracity of the election.” Cruz and company continue to peddle lies about the 2020 Election that create these “deep doubts.”
- Cruz asks: “Do you believe Congress made the right decision in 1876, establishing the election commission to assess the claims of voter fraud?” Muller is taken aback by the question: “In that era, there was no Electoral Count Act and Congress didn’t know how to resolve a dispute between the chambers…The Commission actually said…that it was not in its purview to go behind the returns, as the framing was to investigate the alleged fraud that happened in places like Florida. The goal was to say, what is the true result that comes out of the state?…In my judgment, [the ECA] is a much more sensible approach since 1876 was not the best approach.”
- Sen. Ted Cruz (R-Texas) lectures the committee about the history of the U.S. Constitution and the 1876 election. Cruz directly links the “extraordinary” 2020 election as parallel to what took place in the the 1876 race between Rutherford B. Hayes and Samuel Tilden, pointing out that there were allegations of voter fraud from three different states. “In 1876 Congress didn’t throw his hands in the air and say, well, there are serious allegations of voter fraud, but we are helpless…Instead, Congress did something very different,” Cruz explained, revealing his emphatic approval for how Congress created an 1877 election commission to assess voter fraud and determine who would be president. As a reminder, the 1877 Commission ended with a backdoor compromise that effectively ended Reconstruction in the South.
- Padilla asks the witnesses for suggestions to make the bill better. Gore affirms that the technical corrections suggested by Muller and others would be appropriate. He reiterates that he believes that six days for legal challenges is a sufficient time period. Eisen believes “extraordinary and catastrophic” should be defined and the timing extended. Nelson points to the six-day window for litigation, assignment of judges without appearance of bias, the mandatory appeal to the Supreme Court and more when addressing concerns with the bill.
- Sen. Alex Padilla (D-Calif.) emphasizes to the committee: “The text didn’t exploit itself, people did. The former president did. Senators, members of Congress did, and an army of lawyers all had to give up on our democracy enough to give in to the ‘Big Lie’ and use it to fuel a baseless challenge to the 2020 election. So while fixing the ECA is important, I think it’s also important to remember why we need to do so in the first place.”
- After witnesses affirmed that they believe the judicial review procedures, including existing state laws, are sufficient for this scenario, King follows up with a question about the provision that allows for modification in “extraordinary and catastrophic events.” “What if the legislature says we had widespread fraud in the city of Philadelphia, that’s an extraordinary event, and we have to throw out the result?”
- King: “Do you feel that the Electoral Reform Act adequately deals with the rogue governor problem, a governor who basically refuses to certify? Because we’ve got people running for governor who are saying ‘I wouldn’t have certified in 2020.’”
- Muller: “While there might be, in the most a grand heist theory of the independent state legislature, to say the legislature can do whatever it wants — perhaps that’s true — but it has to do it on the first Tuesday after the first Monday in November, and it has to have laws in place well before that election.” Gore adds that, because of what Muller just outlined, he does not believe that the ISL theory is implicated by the Reform Act.
- Bauer responds to King’s ISL question: “I think one thing is very clear, which is whatever state legislatures may do in the manner of appointing electors, they cannot violate other constitutional provisions. They are still faced with the requirement that their actions be consistent with the due process and equal protection clause with the right to vote under the First Amendment.”
- King brings up the independent state legislature (ISL) theory, awaiting review by the U.S. Supreme Court. “What do you think of this theory? And is this a concern in the context of what we’re discussing here today?”
- Sen. Shelley Moore Capito (R-W.Va.) stresses the importance of the timing. She asks about the urgency to get this issue wrapped up before the 2022 general elections. Eisen responds, “We must seize the moment but we must seize it correctly.” The other witnesses concur that they would like to see movement on ECA reform as soon as possible. Nelson adds that advancing ECA reform would free “Congress up to do more to protect our elections and to enact other legislation.”
- Sen. Mark Warner (D-Va.) compliments the technical fixes put forward in Muller’s written testimony. Warner then asks Bauer a series of yes-no questions. Warner: “Does the Electoral Count Reform Act (ECRA) create a new cause of action?” Bauer: “No, it does not.” Warner: “Does the ECRA expand the jurisdiction of the federal courts?” Bauer: “No, it only provides for expedited reviews of cases that would be brought under existing law.” Warner: “Does the ECRA in any way diminish the power of state courts?” “No, it does not.”
- Muller: “The goal is that there’s one Election Day: the first Tuesday after the first Monday in November. All the rules are going to be in place then and we’re going to follow those rules and adhere to them. There were some concerns that arose in 2020 that legislatures could show up in December or January and appoint a slate of electors under rules that didn’t exist at the time.”
- Blunt begins his line of questioning. He asks about how the bill clarifies that states must use laws enacted before Election Day. “What potential problems would that provision solve?”
- “Election sabotage happens not just after ballots are cast and votes are manipulated. It can happen in the way that the electorate is shaped through voter suppression laws and three laws that erect barriers to the ballot,” Nelson responded to a question from Klobuchar, adding that this means “we also need the Freedom to Vote Act and the John R. Lewis Voting Rights Advancement Act.”
- Bauer takes a different stance. Bauer states that it is very likely that lawsuits will “arise well before that six day period” and that courts have the mechanisms to expedite the resolution of these claims. “And thirdly, I do want to stress again that under the Electoral Count Reform Act, we’re talking about claims that are very narrowly drawn, brought by presidential and vice presidential candidates to address the apparent submission or refusal to provide a certificate in accordance with state laws.”
- Klobuchar asks Eisen to elaborate on his concern over the judicial review procedures and the timing to resolve disputes before the Electoral College meets. “What do you think would be helpful in the six day window?” Eisen responds: “You’ve got to get through briefing, argument, decision, appeal — first with the three court panel, then with the Supreme Court…It will put a burden on the governors, the [attorneys general] and the secretaries of state who are engaged. It simply is not workable to do it in six days.”
- Klobuchar asks the five witnesses a series of yes or no questions about post-election procedures. She asks, (1) “Do you agree that it’s important for Congress to update the ECA to ensure the will of the voters prevails in presidential elections?”, (2) “Do you agree that under existing law, the vice president has no authority to decide which electoral votes to count, and do you support efforts to update the law to make it crystal clear that the vice president has no authority to accept or reject electoral votes?” and (3) “Do you support raising the threshold for these objections to require suggested in this bill the 1/5 of each chamber to sign an objection before it can be debated as suggested in the bipartisan bill?” There is unanimous agreement on all three questions.
- Nelson stresses that ECA reform can only be the start of Congress’ work: “Protections against voting discrimination and voter suppression and protections against election manipulation and subversion are distinct, yet mutually reinforcing ways to prevent election sabotage.
- Nelson: “U.S. democracy is in crisis because of a deep seated, irrational and discriminatory fear of the truly inclusive multiracial, multi ethnic democracy that our nation has never been.”
- Janai Nelson of the NAACP Legal Defense Fund begins her statement: “Historians will study the period between 2020 and 2025 for decades to come. As they seek to explain the next century of American life. They will ask the question, did we act when we have the chance or did we squander our last best hope to protect the freedom to vote and save our democracy? The answer to that question lies in part in the actions of this committee.”
- Muller: “In the event of an election dispute, the very last thing anyone wants is uncertainty…The bill does not invite new avenues of litigation that could create tension with existing stable litigation. It does not offer novel mechanisms for counting in Congress that may face future challenges.”
- Derek Muller, professor at the University of Iowa College of Law, describes his approval for the ECA reforms, adding that “broad bipartisan consensus is essential” to “ensure that future Congresses have the confidence to abide by the rules.”
- As a side note, Eisen adds: “It’s critically important that the governors and other stakeholders in the states that this committee and the Senate so deeply respect be consulted on how the process will work and the complex interactions of state and federal litigation.”
- Eisen now outlines four key provisions to focus on improving: (1) better define the “extraordinary and catastrophic events” that would allow for the extension of Election Day, (2) edit the federal litigation provision to expand the current six-day window for legal challenges and waive the five-day notice requirement for convening a three judge panel, (3) clarify the terms “lawfully certified” and “regularly given,” which are the grounds for objection in Congress and (4) similarly clarify the procedural rules for the congressional count.
- Eisen: “We must ask, does the initial form of the ECRA effectively respond to all the critical weaknesses in the ECA that the campaign to overthrow the 2020 election revealed? If not, then it may actually invite unwelcome manipulation.”
- Former Ambassador Norm Eisen begins his statement. “January 6 has passed, but the danger has not,” Eisen emphasized, linking former President Donald Trump’s efforts on Jan. 6 to the ongoing threat of election deniers running — and winning — in elections right now.
- John Gore, partner at Jones Day, describes the procedures within and his approval for the Electoral Count Reform Act. “The Reform Act is a key bulwark against efforts to change the rules of the game after a presidential election has been held.”
- Bauer: “The proposals before the committee represent a vast improvement over existing law…There have been calls for clarification and tightening in one respect or another, all merit consideration…But, and I emphasize, fortunately none of those calls for clarification or technical correction go to the basic and very effectively designed reform that we have in front of us today.”
- NYU Law Professor Bob Bauer is a member and co-chair of a bipartisan group convened by the American Law Institute focused on ECA reform. Bauer clarifies that his work with the group shaped his views but he is testifying today in an individual capacity. “As a matter of due process, the rules in effect on the date of the election, are the ones that must determine the outcome.”
- Klobuchar introduces three witnesses: Bob Bauer, Norman Eisen and Janai Nelson. Blunt, as the Republican leader on the Rules Committee, introduces the two witness he called: John Gore and Derek Muller.
- Sen. Angus King (I-Maine) recognizes the importance of focusing on this issue. The senator recalled the very first class he took in college: “I don’t know why I remember this because it’s all hell of a long time ago, but the professor said, ‘the thing that America has achieved that has been rarely achieved in world history is the peaceful transfer of power.’”
- Manchin clarifies why the group decided upon the judicial review process outlined in the new bill. The group decided “not to create any new causes of action, but to provide for expedited review of an action that a presidential and vice presidential candidate can already bring under existing law.” Manchin added: “The group is open to some technical fixes to address timing concerns.”
- Sen. Joe Manchin (D-W.Va.), Collins’ counterpart in introducing the bipartisan bill, begins presenting his testimony. Manchin chronicles the history that led to the passage of the ECA in 1887. “The original Electoral Count Act is not merely outdated, but actually serves as the very mechanisms that bad actors have zeroed in on as a way to potentially invalidate presidential election results.”
- “Nothing is more essential to the survival of a democracy than the orderly transfer of power, and there is nothing more essential to the orderly transfer of power than clear rules for affecting it,” Collins concluded.
- Collins highlights a few portions of her Electoral Count Reform Act. The bill reasserts that the role of the vice president in counting electoral votes is purely ministerial, raises the threshold for members of Congress to lodge objections, ensuring that Congress can identify a single conclusive slate of electors, creates a process for expedited judicial review and strikes another outdated, undefined provision of an 1845 law that could be used by state legislatures to override their popular vote by declaring a “failed election.”
- The first witness, Sen. Susan Collins (R-Maine) delivers her opening testimony. Collins led the bipartisan group that proposed the Electoral Count Reform and Presidential Transition Improvement Act. “It took the violent breach of the Capitol on January 6. To really shine a spotlight on how urgent the need for reform was,” Collins emphasized.
- Blunt: “The cooperation we’ve seen here hopefully will be the spirit of cooperation that we move forward, come up with a process that everyone is more comfortable with and will stand the test of time.”
- Ranking Member Roy Blunt (R-Mo.) discusses the history of the ECA, created after a disastrous 1876 election: “Four states, Florida, Louisiana, South Carolina and Oregon, all had two different groups meet on December the sixth of 1876. And each of those groups sent in a competing set of electoral counts. And there was no way to really deal with that issue.”
- Klobuchar: “This great bipartisan group was put together by Senator Collins and Senator Manchin. Senator Blunt and I have met with the bipartisan group, we’ve engaged with them multiple times…As these discussions have progressed, consensus has emerged that any reforms to the Electoral Count Act must address at least four key issues which I’ve already mentioned: the vice president issue, the number of people objecting threshold, the way the slates could be picked at the last minute after an election is done and then finally, the process of making sure you can head into court, if necessary…It’s our job to ensure [what happened on Jan. 6, 2021] never happens again, no matter who’s in charge.”
- The committee hearing begins. Chairwoman Amy Klobuchar (D-Minn) delivers her opening remarks.