Senators release draft bill to combat election subversion

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Three Senate Democrats on Tuesday put forward a plan to reform the Electoral Count Act, the opening bid in an effort gathering steam to prevent election subversion.

The lawmakers — Sen. Amy Klobuchar, D-Minn., Sen. Angus King, I-Maine, and Senate Majority Whip Dick Durbin, D-Ill. — released a so-called discussion draft that will inform colleagues about the work going on among a larger bipartisan group in the Senate.

Sen. Amy Klobuchar
Sen. Amy Klobuchar, D-Minn., at a news conference in January. (Eric Lee/Bloomberg via Getty Images)

The text of the bill immediately came under close examination from experts, who gave it generally positive marks while arguing that some areas need improvement.

The main goal of the proposal is to prevent what has become a major threat to American democracy: attempts by politicians to throw out legal votes in an effort to overturn a legal and fair result they do not like.

The draft bill attempts to reform the Electoral Count Act of 1887 (ECA), which has long been recognized as vague and confusing on several matters, leaving space for bad-faith actors to engage in subterfuge to overturn election results.

The act came under new scrutiny after then-President Donald Trump pressured Vice President Mike Pence to throw out the 2020 election results. Trump’s lawyers argued that the law’s imprecision allowed room for the vice president to do so, but Pence refused.

Most legal scholars have said that while Trump’s maneuver would have been unconstitutional, the law needs to be updated to leave no room for confusion. It’s not just the role of the vice president that needs clarification, however, as there are numerous areas where the ECA is vulnerable to abuse.

Until recently, the biggest blind spot for congressional lawmakers hoping to avert another attempt at election subversion has been the threat at the state level. There are multiple ways in which the ECA does not explicitly block legislatures and governors from throwing out an election result in their state and sending an alternate slate of electors to Congress.

A demonstrator holds a sign
A demonstrator at a recent rally to urge the Senate to pass voting rights legislation. (Tom Williams/CQ-Roll Call via Getty Images)

The Electoral Count Modernization Act (ECMA) created by the three Democrats “would ensure any forgeries or false slates of electors are invalid and could not be considered by Congress,” the lawmakers said. It would “protect against a separate, false slate of electors from being wrongly submitted to Congress.”

The ECMA would give federal courts a bigger role in the process if bad actors in either party tried to throw out results, and would also weaken the power of a governor to dismiss an election result in their state.

The draft legislation would also make it harder for members of Congress to object to certifying election results. This was the mechanism that some Republicans used on Jan. 6, 2021, to try to delay the inauguration of President Biden.

Election experts worry that the ECA could be manipulated by those who make baseless claims of fraud or irregularities and then use the ensuing controversy and confusion to argue that the election results can be thrown out.

Matthew Seligman, a scholar who has worked on ECA reform since 2016, released an 87-page paper last month detailing the ways that the law needs updating. He told Yahoo News on Tuesday that the first draft of reform legislation is “a solid start that gets a lot of things right.”

“It's based on the right fundamental principle: that politicians, state or federal, shouldn't be the ones making the ultimate decision about the result of the presidential election. Its implementation of that principle needs refinement, and I think there can be bipartisan consensus about how to do that,” Seligman said.

Sen. Susan Collins, R-Maine, is leading a larger group of a dozen or so senators from both parties to come up with a solution that can pass the Senate and the House.