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WASHINGTON — As the House committee investigating the Jan. 6 plot prepares to kick off its first public hearing, a bipartisan group of senators huddled Wednesday in the Capitol to negotiate new laws to prevent future candidates from stealing elections.
Two sources familiar with the group’s work said it is close to a deal, having settled on a series of new provisions and working through options on one major unresolved issue.
“We’ve made a lot of major decisions,” Sen. Susan Collins, R-Maine, a leader of the group, said in an interview before the meeting. “We’ve resolved a lot of issues, but we have some more work to do, which I hope we’ll finish up this week.”
The areas of consensus, Collins said, include amending the Electoral Count Act to restrain the vice president’s role, raising the congressional threshold for objecting to electoral votes, overhauling the transition process and protecting election officials from threats.
The group is trying to close loopholes in the electoral system in a flurry of activity among members and staffers in recent weeks to reach consensus on a cause that lawmakers in both parties see as urgent. It was the first face-to-face meeting of members since April. The negotiations were sparked in part by President Donald Trump’s unsuccessful effort to exploit gaps in the law to stay in power even though he lost the 2020 election.
The senators haven’t reached a final agreement, and success would mean avoiding a number of potential political pitfalls. In addition, any bill would require at least 60 votes to break a filibuster and pass the Senate.
After the meeting, an upbeat Collins said that it "went very well" and that senators "made a lot of progress tonight" on "every question." Sen. Jeanne Shaheen, D-N.H., walking out with her, agreed.
‘God help us’
The main issue the Senate group hasn’t resolved, two sources familiar with its work said, is how to address the “safe harbor” deadline — the date by which states must certify their presidential election results to ensure they are counted without interference from Congress. But what if a state misses the deadline? What if it sends an “alternate slate” of electors for a losing candidate?
The Senate negotiations have occurred on a parallel track to the House Jan. 6 committee’s highly anticipated prime-time hearings, which begin Thursday. They began this year after Democrats failed to pass a party-line bill to overhaul voting rights laws across the country. The bipartisan talks focus not on ballot access but rather on counting votes and making sure winners take power.
“I hope the American people will tune in to these hearings and realize just how close we came to overturning a democratic election. And I do hope that will propel — I hope that will break new energy behind some of the election reform efforts,” Sen. Chris Van Hollen, D-Md., said in an interview.
Sen. Chris Coons, D-Del., said he remains "hopeful."
"I do think these hearings will add some extra energy to the work of the group that's been meeting for months," he said.
Some pro-reform Republicans have privately indicated that the cause is helped by the recent primary victories of Republican lawmakers who voted to certify President Joe Biden’s victory, as well as the victories of top state officials in Georgia who defied Trump’s efforts to change the result and defeated his preferred candidates to unseat them.
House Democrats on the Jan. 6 committee also hope their work will spur Congress to act.
“We were fortunate that the last election wasn’t close, that Biden won commandingly. But if it should come down in the future to a single state and an interpretation of the Electoral Count Act, then God help us,” said Rep. Adam Schiff, D-Calif. “There’s so much ambiguity in that law. It could lead to a real constitutional crisis.”
'Safe harbor' provision concerns
Senators in the working group are exploring three options to resolve confusion around safe harbor provisions, said a source who described it as the main sticking point.
The first is to replace the “safe harbor” concept with a clear federal duty for the relevant state official to send timely certification to Congress under the 12th Amendment.
The second is to replace safe harbor provisions with new laws making it clear that Congress can identify the state official lawfully tasked with establishing a state’s electors.
The third is to preserve the safe harbor concept and tell states that to qualify for the presumption that their submitted electors are conclusive, they must notify Congress before Election Day which official is responsible under state law for sending electors.
Senators are also exploring whether there should be a role for federal courts to step in and resolve disputes or for challenges pertaining to state-submitted electors.
What the group has agreed on
Collins said the group will make it clear that the vice president’s role is “just ministerial” — and that he or she doesn’t have unilateral power to discount electoral votes.
She said they have agreed to raise the objection threshold for forcing a vote on whether to count electors from certain states — from the current rule of requiring just one House member and one senator to a new rule requiring 20 percent of lawmakers in the chambers.
After Trump lost the 2020 election, his allies in the House sought to discount key electoral votes for Biden. Their effort escalated when Sen. Josh Hawley, R-Mo., provided the one vote necessary in the Senate to force a debate. Trump also tried unsuccessfully to pressure Vice President Mike Pence to refuse to count pro-Biden electors on Jan. 6, 2021.
Collins said the group wants to reauthorize the Election Assistance Commission and allow grants under the Help America Vote Act “to be used for security purposes for poll watchers and poll workers and election officials.”
She said senators also want “better transition” rules between an election and the inauguration of the victor.
She didn’t elaborate on what that means. Sources familiar with the talks say members are discussing revisions to the Presidential Transition Act of 1963 to ensure that in close or contested elections, key resources are provided to both candidates.
Other Democrats caution that preventing future coups will take more than just new federal laws — specifically, a determination to stop autocrats from gaining power.
"I think reforming the Electoral Count Act is a worthy endeavor. But it's not clear to me that you could create a federal statute to prevent a coup," said Sen. Brian Schatz, D-Hawaii. That, he said, requires a "collective commitment of everybody within the government."
"No one wants to admit that Donald Trump was the problem and he tried to overthrow the government," he said. "There is an autocrat that leads the Republican Party and is likely to get the nomination. And if he fails, he will try to overthrow the government."