UPDATE: On Tuesday, Sept. 27, the Committee on Rules and Administration voted to adopt the manager’s amendment and voted to report S. 4573 as amended to the Senate floor.
WASHINGTON, D.C. — On Tuesday, Sept. 27, U.S. Sens. Amy Klobuchar (D-Minn.) and Roy Blunt (R-Mo.), Chairwoman and Ranking Member of the Senate Committee on Rules and Administration, introduced an amendment to S. 4573, the Senate’s proposed bill to reform the antiquated Electoral Count Act of 1887 (ECA), which was unveiled in July by a bipartisan group of senators. The amendment (known as a manager’s amendment, meaning a package of changes committee members have already agreed on) is designed to update the bill in response to feedback from experts and other senators. The committee will consider the amendment during a markup on Sept. 27 at 4:00 p.m. EDT.
While the amendment leaves most of the underlying Senate bill unchanged, it makes a few key updates. The amendment would:
- Make U.S. Supreme Court review of any federal litigation over the certification of state electors discretionary rather than mandatory,
- Ensure the judicial review procedure provided in the act doesn’t exclude litigation in other state and federal courts
- And clarify the language around certification of electors to specify that during the counting of electoral college votes, Congress must treat the electors certified by a state and modified by any state or federal court relief as conclusive.
On Sept. 21, the House passed its own proposal for ECA reform. While broadly similar, the House version would:
- Impose higher threshold for members to object to a state’s electoral college votes (⅓ instead of ⅕),
- Give members of Congress more grounds for objecting to a state’s electoral college votes,
- Allow candidates to pursue federal court action to extend voting in states where the election is disrupted by catastrophic events
- And provide for federal court action to ensure proper tabulation and certification of election results.
Both House and Senate bills as well as the manager’s amendment clarify that the vice president’s role in counting electoral college votes is purely ministerial. The House and Senate will have to work out any differences between the two bills before any proposal can reach President Joe Biden’s desk for his signature.
Reforming the ECA is seen as a critical step to preventing another event like the attack on the U.S. Capitol on Jan. 6, 2021. In the aftermath of the 2020 presidential election, then-President Donald Trump and his supporters exploited the ECA to fuel his attempts to overturn the results. The ambiguity around the vice president’s role under the ECA fueled the pressure campaign on then-Vice President Mike Pence to reject valid electoral college votes and the ECA’s counting procedures inspired Trump supporters to pressure Republican members of Congress to object to the electoral votes of several states.