    [Senate Hearing 117-332]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-332

                            THE ELECTORAL COUNT ACT:
                              THE NEED FOR REFORM

    =======================================================================

                                    HEARING

                                   before the

                     COMMITTEE ON RULES AND ADMINISTRATION
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                           WEDNESDAY, AUGUST 3, 2022

                                   __________

        Printed for the use of the Committee on Rules and Administration

                   [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                      Available on http://www.govinfo.gov

                                     ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    48-265                    WASHINGTON : 2022

                     COMMITTEE ON RULES AND ADMINISTRATION

                                 SECOND SESSION

                      AMY KLOBUCHAR, Minnesota, Chairwoman

    DIANNE FEINSTEIN, California         ROY BLUNT, Missouri
    CHARLES E. SCHUMER, New York         MITCH McCONNELL, Kentucky
    MARK R. WARNER, Virginia             RICHARD SHELBY, Alabama
    PATRICK J. LEAHY, Vermont            TED CRUZ, Texas
    ANGUS S. KING, JR., Maine            SHELLEY MOORE CAPITO, West
    JEFF MERKLEY, Oregon                     Virginia
    ALEX PADILLA, California             ROGER WICKER, Mississippi
    JON OSSOFF, Georgia                  DEB FISCHER, Nebraska
                                         CINDY HYDE-SMITH, Mississippi
                                         BILL HAGERTY, Tennessee

                        Elizabeth Peluso, Staff Director
                 Rachelle Schroeder, Republican Staff Director

                             C  O  N  T  E  N  T  S

                                  ----------
                                                                      Pages

                             Opening Statement of:

    Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
      State of Minnesota.............................................     1
    Hon. Roy Blunt, a United States Senator from the State of
      Missouri.......................................................     3
    Hon. Susan Collins, a United States Senator from the State of
      Maine..........................................................     4
    Hon. Joe Manchin, a United States Senator from the State of West
      Virginia.......................................................     6
    Hon. Angus King, a United States Senator from the State of Maine.     8
    Bob Bauer, Professor of Practice and Distinguished Scholar in
      Residence at New York University, School of Law, New York, NY..    10
    John M. Gore, Partner, Jones Day, Washington, DC.................    12
    Ambassador [Retired] Norman Eisen, Senior Fellow, Governance
      Studies, The Brookings Institution, Washington, DC.............    13
    Mr. Derek T. Muller, Professor of Law, University of Iowa,
      College of Law, Iowa City, IA..................................    15
    Mrs. Janai Nelson, President and Director-Counsel, NAACP Legal
      Defense and Educational Fund, Inc, New York, NY................    17

                             Prepared Statement of:

    Hon. Susan Collins, a United States Senator from the State of
      Maine..........................................................    39
    Hon. Joe Manchin, a United States Senator from the State of West
      Virginia.......................................................    41
    Bob Bauer, Professor of Practice and Distinguished Scholar in
      Residence at New York University, School of Law, New York, NY..    44
    John M. Gore, Partner, Jones Day, Washington, DC.................    51
    Ambassador [Retired] Norman Eisen, Senior Fellow, Governance
      Studies, The Brookings Institution, Washington, DC.............    53
    Mr. Derek T. Muller, Professor of Law, University of Iowa,
      College of Law, Iowa City, IA..................................    67
    Mrs. Janai Nelson, President and Director-Counsel, NAACP Legal
      Defense and Educational Fund, Inc, New York, NY................    87

                      Materials Submitted for the Record:

    Statement for the Record from the R Street Institute (RSI).......   127
    Statement for the Record from the Campaign Legal Center (CLC)....   130
    Why Congress Should Swiftly Enact the Senate's Bipartisan ECA
      Reform Bill....................................................   134
    End Citizens United/Let America Vote Action Fund Letter of
      Support for the Electoral Count Act............................   153
    Office of Minnesota Secretary of State Steve Simon Letter of
      Support for the Electoral Count Act............................   155
    Leadership Now Project/Count Every Hero/Making Every Vote Count
      Letter of Support for the Electoral Count Act..................   157
    Project on Government Oversight (POGO) Letter of Support for the
      Electoral Count Act............................................   160
    Cato Institute Letter of Support for the Electoral Count Act.....   162
    Testimony of the New York City Bar Association Task Force on the
      Rule of Law and Election Law Committee.........................   178
    Testimony of Fred Wertheimer President, Democracy 21, On
      Reforming the Electoral Count Act..............................   241

                      Questions Submitted for the Record:

    Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
      State of Minnesota to Bob Bauer, Professor of Practice and
      Distinguished Scholar in Residence at New York University,
      School of Law, New York, NY....................................   247
    Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
      State of Minnesota to Ambassador [Retired] Norman Eisen, Senior
      Fellow, Governance Studies, The Brookings Institution,
      Washington, DC.................................................   248

                            THE ELECTORAL COUNT ACT:
                              THE NEED FOR REFORM

                                  ----------

                           WEDNESDAY, AUGUST 3, 2022

                                   United States Senate
                          Committee on Rules and Administration
                                                         Washington, DC

        The Committee met, pursuant to notice, at 10:34 a.m., in
    Room 301, Russell Senate Office Building, Hon. Amy Klobuchar,
    Chairwoman of the Committee, presiding.
        Present: Senators Klobuchar, Blunt, Warner, King, Padilla,
    Ossoff, Cruz, Capito, Wicker, and Fischer.

      OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, CHAIRWOMAN, A
           UNITED STATES SENATOR FROM THE STATE OF MINNESOTA

        Chairwoman Klobuchar. All right. Well, thank you so much,
    everyone. I wanted to wait for Senator Blunt and not much
    waiting at all, but I did that just because we have chaired
    this Committee together. We are good friends. Certainly as we
    approach this important bill, the Electoral Count Act, it is
    really important that this spirit of bipartisanship gets us
    through and gets this thing passed.
        I want to thank Roy Blunt and our colleagues who will be
    here shortly. I want to mention Senator King, who we are going
    to hear from this morning, who has been a major leader in this
    area, and worked with me and Senator Durbin on our bill that we
    presented to the group that came together to work on this.
        I want to thank Senator Capito, who was part of the
    bipartisan group and is a valued Member of our Committee. I
    know Senator Warner was also part of the group, who is a Member
    of our Committee. We thank him. We are joined by the former
    Secretary of State, Senator Padilla, a very valued Member of
    our Committee, as well as Senator Fischer, who we may be seeing
    up here at some point in the coming Congress.
        I thank all of you. I want to welcome Senator Collins and
    Senator Manchin to this beautiful hearing room. Welcome. You
    can look at the ships. I know you like to sail, Senator
    Manchin, and they will remind you of Maine, Senator Collins,
    while you hear Senator Blunt and I give our opening remarks.
        The Electoral Count Act was passed in 1887, as I noted, in
    response to the disputed election between Rutherford Hayes and
    Samuel Tilden. Just something that just comes off the lips of
    everyone at this hearing today. I point this out because it was
    long ago, and that bill was put in place to govern how Congress
    at that time counted electoral votes for President.
        While it has not gotten much attention in the next 130
    years, it became the cornerstone, sadly, of a plan hatched by
    President Trump and his allies that led to an insurrection at
    the Capitol, where there was a possibility, Senator Blunt and I
    remember that day well, where the will of the American people
    could have been overturned. It culminated in a violent mob
    desecrating our Nation's Capitol.
        On that dark day, enemies of our democracy sought to
    exploit the provisions of this antiquated law to subvert the
    results of a free and fair election. I remember this day well
    because Senator Blunt and I were the ones at 3:30 in the
    morning with Vice President Pence that were walking through the
    broken glass.
        We had done that walk 13 hours before. It was celebratory.
    It was amazing. It was a big ceremony. We had a big procession.
    At the end of the day, it was just us, closed doors, broken
    windows, glass all over the place, spray painted columns. But
    our democracy rose again, the inauguration, and we went
    forward. Part of that is working together to make sure that
    laws cannot be used by anyone of any party, any political
    persuasion in a way that undercuts the will of the people.
        Number one, the claim was made that the Electoral Count Act
    as it exists would allow the Vice President to refuse to accept
    electoral votes that were lawfully cast. We watched in horror
    as a mob stormed the Capitol, chanting ``hang Mike Pence,'' and
    got within 40 feet of the Vice President of the United States.
    We know these claims about the Vice President's authority were
    false. But in the proposals that we have put forward, Senator
    King and the group, the bipartisan group, make it absolutely
    clear that the Vice President does not have this power.
        In the days and weeks before the insurrection, they claimed
    that the law allows the state legislatures to appoint their own
    electors if they declared a failed election. State
    representatives in Wisconsin and Michigan were pressured to do
    just that. They claimed the law allowed so-called rogue
    electors to substitute their own views for the will of the
    voters. They recruited people in multiple states to send in
    fraudulent votes and slates.
        My proposal here and the bipartisan work that you have done
    would guard against efforts like those by ensuring that
    candidates can go to Federal court to stop rogue Governors from
    sending invalid electoral votes. They also planned to force
    debate and votes on objections to six states' electoral votes.
        That is when I think everyone learned just one Senator and
    one Congressman, if joined together, can actually gum up the
    proceeding. I remember Senator Blunt and I realized it was
    going to take at least 24 hours before we even knew the
    insurrection was coming our way. As Senator Collins just
    pointed out to me, and as history has shown us, there have been
    other objections over the years, regardless of party.
        People can make objections. No one is suggesting we stop
    them from speaking out. It is just that there has got to be a
    minimum that makes sense before Congress would step in and
    delay the counting of the electoral vote. I will never forget,
    as I said, what happened that day. I do not think any of us
    will.
        It is time to make sure that we reform this law. As I
    noted, Senators King, Durbin, and I released draft legislation.
    This great bipartisan group was led by Senator Collins and
    Senator Manchin. Senator Blunt and I have met with the
    bipartisan group. We have engaged with them multiple times,
    including with our staffs' assistance, and they worked for
    months to get consensus. They did.
        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 have already mentioned, the Vice
    President issue, the number of people objecting, the 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.
        I want to make clear that since the 2020 election, when
    more Americans voted than ever before during a global pandemic,
    we have seen a tidal wave of voter suppression laws. I
    appreciate the work Senator Manchin and a group of us did
    together trying to fix that. I still hope we can get some of
    those reforms done in the future.
        With that, I want to turn it over to my friend and
    colleague, Senator Blunt, and again, thank him for his
    bipartisan work on this. It is our job to ensure this never
    happens again, no matter who is in charge or what happens. We
    are focused on the future.

       OPENING STATEMENT OF HONORABLE ROY BLUNT, A UNITED STATES
                   SENATOR FROM THE STATE OF MISSOURI

        Senator Blunt. Well, thank you, Chairwoman Klobuchar. We
    have worked together on these issues for a long time, and
    hopefully is an example of the importance of coming together
    and making things happen. I am glad to get a chance to talk
    while Senator Manchin and Senator Collins, both good friends of
    mine who are here, and talk about some of the reasons for the
    hearing today.
        As you pointed out, the Electoral Count Act of 1887 just
    turned out to be more troublesome potentially than anybody had
    thought. What happened in 1876 was that tightly contested race
    you talked about between Tilden and Hayes, and four states,
    Florida, Louisiana, South Carolina, and Oregon all had two
    different groups meet on December the 6th of 1876, and each of
    those groups sent in a competing set of electoral count.
        There was no way really to deal with that issue at that
    point in our history. The Congress passed the Electoral
    Commission Act, which really did not work very well either and
    was--and ended with a compromise that put Hayes in the White
    House and largely ended reconstruction in the South at the same
    time. After really a decade of fairly great progress was
    eliminated as part of the result of that compromise.
        One of the darker decisions, I think, in the history of the
    country. In the next decade, there were two more really close
    elections and Congress contemplated that whole time, okay, how
    would we deal with this if it ever happened again? While it
    took a decade, they did come up with the idea of the bill that
    became the Electoral Count Act.
        By the way, during that same period of time, they also
    eliminated the legislative leaders from the line of succession
    to the presidency. That is another topic that, frankly, I think
    we ought to think about a little more closely than we have,
    though probably not today. Those legislative leaders from the
    1880's until the Truman presidency were not included in the
    line of succession to the presidency. They were put back in
    under President Truman and reversed.
        Under the early days of the country, it was the President
    pro tem first and then the speaker, and partly because of
    President Truman's great respect for Speaker Rayburn, they put
    the speaker first and then the President pro tem. But there is
    a long period of time when legislative leaders, because of how
    many these really close elections, were taken out of the line
    of succession. The Electoral Count Act of 1887 seemed to do the
    job.
        While it was not perfect, as we will no doubt hear today,
    it governed our counting process since then. Written in a
    different age, the language of 1887 is really outdated and
    vague in so many ways, and so both sides of the aisle want to
    update this Act. Recent polling indicates that almost everybody
    that has thought about this wants to update this Act.
        Questions like, what is the proper role of Congress? What
    is the proper role of the Vice President? How should
    elections--objections to electors and electoral votes be
    levied? What are--what is the appropriate threshold for that
    process to start? What is the role of the Federal Government in
    this process? Should the timelines be altered? More.
        We are going to hear about that at the hearing today. It
    provides us an opportunity, it is Senator Klobuchar's decision
    to have this hearing, and provides us with an opportunity to
    further explore all of those questions, hopefully come to the
    right conclusions, and get this bill passed and get it done
    this year.
        I want to thank Senator Collins and Senator Manchin for
    being here today. I applaud their efforts, along with Senator
    Capito and Senator Warner, who worked on that bipartisan effort
    to come up with a reform bill. Also, I want to thank Chair
    Klobuchar and Senator King for putting together, along with
    Senator Durbin, a proposal that I understand the bipartisan
    group looked into and considered while they were drafting their
    legislation.
        The cooperation we have 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. I want to thank all of you for being here
    today, and I look forward to hearing from our witnesses and
    moving this process forward.
        Chairwoman Klobuchar. Okay, very good. We have been joined
    by Senator Warner, a Member of the bipartisan group. We have
    mentioned you several times. Thank you. Let's start out with
    Senator Collins, Senator Manchin, and we are going to hear from
    Senator King, and then we will call up our witnesses. Thank
    you.

     OPENING STATEMENT OF HONORABLE SUSAN COLLINS, A UNITED STATES
                    SENATOR FROM THE STATE OF MAINE

        Senator Collins. Thank you very much. Chairwoman Klobuchar,
    Ranking Member Blunt, Members of this distinguished Committee,
    with a special recognition of my Maine colleague, Senator King,
    and Members of our bipartisan group, Senator Capito and Senator
    Warner, all the Members of this Committee, it is a great
    pleasure to join you this morning to testify on the legislation
    that a bipartisan group of Senators has written to reform the
    135 year old Electoral Count Act, the archaic and ambiguous law
    that governs how Congress tallies each state's electoral votes
    for President and Vice President.
        In four out of the past six presidential elections, the
    Electoral Count Act's process for counting electoral votes has
    been abused, with frivolous objections being raised by Members
    of both parties. But it took the violent breach of the Capitol
    on January 6th to really shine a spotlight on how urgent the
    need for reform was.
        Over the past several months, a dedicated, bipartisan group
    of Senators has worked very hard to craft the legislation
    before you, united in our determination to prevent the flaws in
    this 1887 law from being used to undermine future presidential
    elections. I would like to acknowledge the contributions of our
    co-sponsors, two Members of this Committee, Senator Capito and
    Senator Warner, Senators Romney, Sinema, Portman, Shaheen,
    Murkowski, Tillis, Murphy, Young, Cardin, Sasse, Coons, and
    Graham all played a role.
        I want to especially thank the Chairwoman and Ranking
    Member for their advice and insight throughout this process.
    The bill that we have introduced, the Electoral Count Reform
    and Presidential Transition Improvement Act, will help ensure
    that electoral votes totaled by Congress accurately reflect
    each state's popular vote for President and Vice President.
        It includes a number of important reforms. Let me highlight
    just a few. First, it reasserts that the Constitutional role of
    the Vice President counting electoral votes is strictly and
    solely ministerial. The idea that any Vice President could have
    the power to unilaterally accept, reject, change, or halt the
    counting of electoral votes is antithetical to our
    Constitutional structure and basic democratic principles.
        Second, our bill raises the threshold to lodge an objection
    to electors to a minimum of one-fifth of the duly chosen and
    sworn Members of both the House and the Senate. Now, this 20
    percent threshold was not just plucked out of the air. It
    mirrors the threshold under Article 1 of the Constitution to
    call for the yeas and nays on a vote in Congress. Currently,
    only a single Member in both houses, as the Chairwoman
    indicated, is required to object to an elector or a slate of
    electors.
        Third, and perhaps most significant, our legislation
    ensures that Congress can identify a single conclusive slate of
    electors submitted by each state. It does so by the following.
    It clearly identifies a single state official who is
    responsible for certifying a state's electors. It also ensures
    that a state's electors are certified and appointed pursuant to
    state law that was in effect prior to Election Day.
        Fourth, it provides aggrieved presidential candidates with
    an expedited judicial review of federal claims related to a
    state certificate of electors. This does not create a new
    course of action. Instead, it will ensure prompt and efficient
    adjudication of disputes.
        Fifth, it would require Congress to defer to the state of
    electors submitted by a state pursuant to the judgment of state
    or Federal courts. Finally, our bill strikes a provision of
    another outdated law enacted in 1845 that could be used by
    state legislatures to override their popular vote by declaring
    a failed election. That is a term that is undefined in that
    1845 law.
        Our bill permits a state to modify the period of its
    election only in extraordinary and catastrophic circumstances,
    and also only as provided under that state's law enacted prior
    to Election Day. Our legislation is supported by numerous
    election law experts and Constitutional scholars with whom we
    have consulted throughout our deliberations.
        I am so grateful for their advice, and I ask unanimous
    consent that several of those statements of endorsement be
    included in the record of this hearing.
        Chairwoman Klobuchar. They will be included.
        [The information referred to was submitted for the record.]
        Senator Collins. Chairwoman Klobuchar, Ranking Member
    Blunt, Members of this Committee, we have before us an historic
    opportunity to modernize and strengthen our system of
    certifying and counting the electoral votes for President and
    Vice President.
        Nothing is more essential to the survival of a democracy
    than the orderly transfer of power. There is nothing more
    essential to the orderly transfer of power than clear rules for
    effecting it. I urge my colleagues in the Senate and the House
    to seize this opportunity to enact these sensible and much
    needed reforms before the end of this Congress. Thank you so
    much.
        Chairwoman Klobuchar. Thank you very much, Senator Collins.
    I also know we have been joined by Senator Ossoff, who hosted a
    field hearing in Georgia. Thank you. Senator Wicker. Next up,
    Senator Manchin. Thank you.

      OPENING STATEMENT OF HONORABLE JOE MANCHIN, A UNITED STATES
                SENATOR FROM THE STATE OF WEST VIRGINIA

        Senator Manchin. Chairwoman Klobuchar, Ranking Member
    Blunt, my colleague from West Virginia, Senator Capito, and all
    the Members, thank you so much for giving me the opportunity to
    present some brief remarks which have been stated so eloquently
    before the Electoral Count Reform Act, which I think is one of
    the most important things we have before us in Congress today
    along with so many others.
        As has been said, the Electoral Count Act was originally
    passed into law in 1887 and was a valiant but clumsy effort,
    very clumsy effort to ensure that another presidential election
    like the 1876 contest between Rutherford B. Hayes and Samuel J.
    Tilden never happened again.
        As Members of this Committee know, the 1876 election was a
    disaster. It was absolutely disastrous. Neither candidate
    received an electoral majority and multiple states presented
    serious controversies by submitting dueling slates of electors.
        To add to the confusion, following an informal deal that
    was struck with Southern Democrats, the Southern Democrats that
    effectively ended reconstruction, Hayes was eventually named
    President.
        But the vulnerability of our democracy was truly revealed.
    Following two other close elections in 1880 and 1884, and
    numerous failed attempts at reform, Congress finally passed the
    Electoral Count Act of 1887. But as we saw on January 6, 2021,
    a lot of the fixes established by the original Electoral Count
    Act are not merely outdated, but actually serve as the very
    mechanisms that bad actors have zeroed in on, as a way to
    potentially invalidate presidential election results.
        As I am sure you will hear from the panel of distinguished
    experts who will testify before you today, the time to reform
    the ECA is way past due, way past due. The time for Congress to
    act is now. As Senator Collins just said, before this Congress
    adjourns. I am proud of the bipartisan bill produced by Senator
    Collins, myself, and my colleagues last month, the Electoral
    Count Reform and Presidential Transition Improvement Act of
    2022.
        I am particularly thankful to Senator Collins for her
    leadership throughout the process and for the valuable input
    from all my colleagues in the working group on both sides of
    the aisle.
        I think it is worth mentioning all of them because they
    have worked so hard, Senator Portman, Senator Murphy, Senator
    Romney, Senator Shaheen, Senator Murkowski, Senator Warner,
    Senator Tillis, Senator Sinema, Senator Capito, Senator Cardin,
    Senator Young, Senator Coons, Senator Sasse, Senator Graham,
    all of whom are co-sponsors. That is tremendous.
        While I will be among the first to acknowledge that the
    bill is not perfect, it represents many months of hard work and
    compromise, and would serve as a tremendous improvement over
    the current ECA. As Senator Collins just mentioned in her
    remarks, the bill addresses what the bipartisan group
    identified as the most concerning problems of the ECA.
        It unambiguously clarifies that the Vice President is
    prohibited, and I repeat, it clarifies that the Vice President,
    whoever he or she may be, is prohibited from interfering with
    electoral votes. It raises the objection threshold by 20
    percent that would mark a shift from a single representative
    under the current ECA to 87 House Members, 87 from 1.
        It also improves on basically only 1 Member of the Senate
    to 20 that must ratify, 20. It sets a hard deadline for state
    Governors to certify their respective states' electoral
    results. They just cannot wait until after the election before
    they decide who will send their electoral results. That cannot
    be done.
        If they fail to do so or submit a slate that does not match
    with the electoral results from the state, it creates an
    expedited judicial process to resolve. On that last point, the
    expedited judicial procedure, I briefly would like to take a
    moment to discuss the reform proposed by our bill and explain
    why we propose revising the ECA as we did.
        Our group decided to rewrite Section 5 regarding the
    certificate of ascertainment of electors, 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, it does so in a way that carefully
    limits the parties who can avail themselves of this expedited
    procedure and ensures that the slate of electors in Congress
    tallies are those certified and appointed pursuant to laws in
    effect prior, and I remind you, prior to Election Day.
        While the group is open to some technical fixes to address
    timing concerns, for example, striking the 5-day notice
    typically required under Section 2284 of Title 28, we stand by
    this provision as a way to quickly and efficiently determine a
    single lawful slate of electors. In closing, I would like to
    remind you we were all there on January 6th. That happened.
    That was for real.
        It was not just a visit by friends from back home. We have
    a duty and responsibility to make sure it never happens again.
    The Electoral Count Reform and Presidential Transition
    Improvement Act of 2022 is something that our country
    desperately needs, and a correction that needs to happen now.
        I just want to thank you for the attention, for taking this
    up right now, and working in such an expeditious way. You are
    going to have some great, great presenters behind us here and
    have all the knowledge that we really used for the sources that
    we did to make this--make this piece of legislation happen. I
    want to thank Senator Collins and all those of the Members that
    worked on it so diligently. Thank you.
        Chairwoman Klobuchar. Thank you. Senator King.

      OPENING STATEMENT OF HONORABLE ANGUS KING, A UNITED STATES
                    SENATOR FROM THE STATE OF MAINE

        Senator King. Thank you, Madam Chair. The first thing I
    want to do is thank our two Senators and the group that worked
    so hard on this bill. It is an example of how this place can
    and should work.
        It involves, I know, compromise and a great deal of
    discussion, a great deal of research. I really want to
    compliment you on that work. It gives us a really good piece of
    legislation that we can then work forward in this Committee,
    and hopefully, as Senator Collins suggests, act on this within
    this Congress. I think that is very important. A couple of
    points.
        This is not a partisan issue. This is a mechanical issue.
    This is a rules issue that involves how our Government should
    work no matter who is in charge. This coming January 6th of
    2025, a Democratic Vice President will be in that Chair. I just
    think that what we have to emphasize, that we should not try to
    game this out on a partisan basis and think that this favors
    one side or the other.
        I do not think it does, because there is no telling what
    the circumstances will be in particular states or here in the
    Congress in future years. The very first class I took in
    Government in college, the very first class, and I do not know
    why I remember this, because it was a hell of a long time ago,
    the professor said, ``the thing that America has achieved that
    has been rarely achieved in world history is the peaceful
    transfer of power that is unusual in world history.''
        The way we have achieved that is by having a written
    Constitution and a set of rules that have guided us. As Senator
    Collins said, if you have ambiguity and confusion, that opens
    the way to conflict and ultimately violence as we saw on
    January 6th. The core concept is the peaceful transfer of
    power.
        Underlying that is a clear set of rules and principles that
    people can all understand and accept in advance, and then it is
    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. Again, I just want to thank you
    all particularly for your leadership on this issue.
        My colleague from Maine played an indispensable role, I
    know, and you have really given us a solid basis upon which to
    proceed. I do not think there is a more important matter before
    us in this Congress.
        It is one that I hope that we can resolve quickly. Again,
    it should be on an entirely bipartisan basis. It is a
    fundamental issue that goes to the heart of our democratic
    system. Thank you, Madam Chair.
        Chairwoman Klobuchar. Thank you very much. Thank you,
    Senator King. I want to thank our two Senators. There is just a
    few other things going on that you may be involved in. Thank
    you for your good work. I am going to call up our witnesses,
    and Senator Blunt and I will introduce them, and then we will
    swear you in.
        A few of them are remote. Before I introduce our panel,
    come on up, I would like to ask for unanimous consent to enter
    a few statements and letters into the record from democracy
    reform groups, including elected officials and others,
    Minnesota Secretary of State Steve Simon, the Campaign Legal
    Center, Protect Democracy, the New York City Bar Association,
    the Project on Government Oversight, Democracy 21, and Citizens
    United, and the Cato Institute. Without objections, the
    documents will be entered into the record.
        [The information referred to was submitted for the record.]
        Chairwoman Klobuchar. I will now introduce our witnesses.
    First, Bob Bauer, who I understand is with us remotely. He is a
    Professor of Practice and Distinguished Scholar in Residence at
    New York University School of Law, where he also co-directs the
    Legislative and Regulatory Process Clinic.
        Previously, Mr. Bauer served as President Obama's White
    House Counsel from 2009 to 2011, and in 2013, President Obama
    appointed him as co-chair of the President's Commission on
    Election Administration. He holds an undergraduate degree from
    Harvard and a law degree from the University of Virginia,
    Senator Warner.
        Next up, Ambassador Norman Eisen, who is with us today, a
    Senior Fellow in Governance Studies at the Brookings
    Institution. Ambassador Eisen has studied and written
    extensively on election law, ethics, and anti-corruption.
        He served as Special Counsel to the House Judiciary
    Committee, as United States Ambassador to the Czech Republic,
    and as President Obama's Special Counsel for Ethics and
    Government Reform. He has an undergraduate degree from Brown
    and a law degree from Harvard.
        Next up, Mrs. Janai Nelson, who serves--and she is going to
    be remote--as President and Director-Counsel of the NAACP Legal
    Defense and Educational Fund since March 2022. She previously
    served as Associate Director Counsel at LDF for eight years.
        Earlier in her career, she was an Associate Dean and
    Associate Director of the Ronald H. Brown Center for Civil
    Rights and Economic Development at Saint John School of Law.
    She holds a bachelor's degree from NYU and a law degree from
    the University of California, Los Angeles. Senator Blunt.
        Senator Blunt. Thank you, Senator Klobuchar. I want to
    thank all of our witnesses for being here today. I have two
    witnesses that I am able to introduce. First is John Gore. Mr.
    Gore is currently a partner in the Government relations
    practice at Jones Day in Washington, where his practice focuses
    on voting, elections, and regulatory litigation.
        His broad experience includes litigating numerous voting
    and election cases in 16 different states and at all levels of
    the state and federal judiciary, including the United States
    Supreme Court. Mr. Gore previously served as the Acting
    Assistant Attorney General and Principal Deputy Assistant
    Attorney General for the Civil Rights Division of the United
    States Department of Justice from 2017 to 2019. In that role,
    he led the Department's enforcement of the federal civil rights
    laws nationwide.
        Next, we have Professor Derek Muller, a tenured Professor
    of Law at the University of Iowa College of Law. He is
    nationally recognized as a scholar in the field of election
    law. His research has focused on the roles of states and the
    administration of federal elections, the Constitutional
    contours of voting and election administration, the limits of
    judicial power in the domain of elections, and the Electoral
    College.
        As the bipartisan working group worked on their bill, he
    provided them with expert guidance and advice. I want to thank
    all five of our witnesses for joining us today and look forward
    to your testimony.
        Chairwoman Klobuchar. Very good. If you would all stand,
    including our witnesses at home, raise your right hand. Do you
    swear that the testimony you will give before the Committee
    shall be the truth, the whole truth, and nothing but the truth,
    so help you God?
        Mr. Bauer. I do.
        Mr. Gore. I do.
        Mr. Eisen. I do.
        Mr. Muller. I do.
        Mrs. Nelson. I do.
        Chairwoman Klobuchar. Very good. You can all be seated.
    Mr. Bauer, you are now recognized for your testimony for 5
    minutes.

       OPENING STATEMENT OF BOB BAUER, PROFESSOR OF PRACTICE AND
      DISTINGUISHED SCHOLAR IN RESIDENCE AT NEW YORK UNIVERSITY,
                   SCHOOL OF LAW, NEW YORK, NEW YORK

        Mr. Bauer. Thank you very much. Thank you very much, Chair
    Klobuchar, Ranking Member Blunt, and Members of the Committee
    for this invitation to testify. I have submitted, of course, a
    full written statement for the record. I come to this testimony
    as a Member and co-chair with Professor Jack Goldsmith of the
    bipartisan group convened by the American Law Institute to
    consider reform of the Electoral Count Act.
        Unanimously produced a statement of principles that has
    shaped my views, but I want to emphasize that I am here today
    in my individual capacity. Unlike so many areas of contested
    political reform, there is widespread agreement across the
    political and ideological divide that the ECA requires
    revision.
        Legal scholars have long been calling for reform for most
    of its 135 year old history. The statutes' obvious weaknesses
    and dangers have not erupted into controversy over the outcome
    of a presidential election.
        But those dangers now face us all, and reform is now
    clearly and urgently needed. The business of reforming this
    statute poses complexities and tradeoffs, and yet the proposals
    before this Committee navigate these difficulties with
    considerable effectiveness. They set us on a path to reform
    that represents an extraordinary bipartisan achievement.
        The core aim of the Electoral Count Act reform is to ensure
    that the popular judgment rendered on Election Day under the
    election law rules then in place in the state, is respected and
    then protected from being cast aside by state executive
    officials or by political majorities that happen to be in
    control of the Congress or of state legislatures.
        Under the Constitution, state legislators, of course,
    determine the manner of appointing electors. For those states
    that choose popular elections, as all now do, Congress fixes
    the date that an election takes place. As a matter of due
    process the rules, in effect on the date of the election are
    the ones that must determine the outcome. This is basic stuff.
    In our democracy, we do not change the rules of competition
    after the game is played and the results are known. ECA reform
    as a matter of fundamental design vindicates the central tenet
    of our democratic life.
        It respects state law, a process for setting the rules of
    an election, from the casting of ballots through canvassing,
    recount and contest processes. But it requires that states
    honor those results when transmitting to Congress the
    ascertainment of electors whose votes should be included in the
    January 6th tally.
        It also clarifies Congress's role, which is to receive the
    lawful certificates so that it can count the correct electors
    votes, not to second guess the state's lawful popular vote
    count. As tested in state post-election recount and contests,
    and in federal and state litigation, the Electoral Count Act
    and the Electoral Count Reform Act shows that this can be done
    without creating any new legal claims or causes of action,
    merely assuring that when Presidential and Vice Presidential
    candidates challenge the lawfulness of certificates at a state
    legislature or state executive official might send Congress
    ways.
        Those claims, as brought under existing law, are expedited.
    The tight timetable for the resolution of those issues before
    January 6th requires expeditious resolution. ECA reform
    proposals before this Committee can also clarify Congress's
    role in the conduct of the Joint Session proceedings.
        Here there are large areas of consensus, strict limitations
    on the role of the presiding officer, raising the threshold,
    and charting the nature of permissible objections, and other
    mechanisms and rules for the conduct of this Constitutional
    process in which the public can have confidence. I will close
    by saying that the proposals before the Committee represent a
    vast improvement over existing law.
        There can be no question about that, none whatsoever. As I
    have noted in my written statement and as will emerge, I hope
    in the time for questions and answers, there have been calls
    for clarification and tightening. In one respect or another,
    all merit consideration. Some might well address concerns about
    ambiguities and misreadings.
        But, and I emphasize this 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. Thank you very much, Chair Klobuchar, and Ranking Member
    Blunt, and Members of this Committee.
        [The prepared statement of Mr. Bauer was submitted for the
    record.]
        Chairwoman Klobuchar. Thank you very much. Next up,
    Mr. Gore.

        OPENING STATEMENT OF JOHN M. GORE, PARTNER, JONES DAY,
                             WASHINGTON, DC

        Mr. Gore. Good morning, Chairwoman Klobuchar, Ranking
    Member Blunt, and distinguished Members of the Committee. I
    first want to commend the Committee for taking up this crucial
    topic and for its commitment to a commonsense and bipartisan
    approach to reforming the Electoral Count Act.
        Today's witnesses are distinguished experts and thought
    leaders from across the political spectrum. I am honored to be
    included in today's hearing, and I thank the Committee for
    inviting me to testify today. The Electoral Count Act governs a
    vital moment in our American democracy, the moment when states
    pass the baton of presidential elections to Congress.
        The Constitution itself prescribes the roles of states and
    Congress in our presidential elections. The Constitution's
    Electors Clause vests in state legislatures the authority to
    direct the manner in which each state's electors are chosen.
    The Constitution vests in Congress the responsibility to count
    each state's electoral votes, and to certify and ascertain the
    winner of the Presidency and the Vice Presidency.
        Since 1887, the Electoral Count Act has laid out a
    procedure for states to certify their electors, and it has
    directed Congress's discharge of its duty to collect, count,
    and compile electoral votes.
        The states in Congress have performed admirably well under
    the Act, but the Act contains numerous gaps and ambiguities
    that could impede Congress's ability to count electors
    accurately in a future presidential election.
        Reforming the Act is necessary and appropriate. Congress
    should take the opportunity to safeguard the integrity of our
    presidential elections now before future disputes arise.
    Several of the current Act's shortcomings reflected silence on
    judicial review. For example, the current Act does not address
    federal judicial review in this scenario.
        When a Governor fails to certify a slate of electors or
    certifies the wrong slate of electors, the current Act also
    does not address how Congress should handle a revised
    certificate issued by a Governor under the order of a state or
    Federal court.
        The Bipartisan Electoral Count Reform Act preserves the
    precedent and practices in our presidential elections that have
    served states, Congress, and the American people for decades.
    At the same time, the Reform Act offers several key
    improvements for the benefit of states, Congress, and the
    American people.
        Four of the main provisions of the Reform Act address
    judicial review and clarify the role of courts in adjudicating
    presidential election disputes. First, the Reform Act
    reiterates that the laws that govern presidential elections are
    the state laws adopted by state legislatures prior to the
    election.
        This provision will help preserve, protect, and promote
    free and fair elections on behalf of all Americans. The
    American people can have faith and confidence in the integrity
    of our elections only when the rules are set before the
    election are followed, during the election, and upheld after
    the election.
        The Reform Act is a key bulwark against efforts to change
    the rules of the game after a presidential election has been
    held. Second, the Reform Act leaves states and their voters in
    charge of choosing presidential electors as the Constitution
    directs.
        Accordingly, the Reform Act preserves existing state laws
    for contesting or challenging the results of an election.
    States have adopted a variety of judicial and administrative
    procedures for adjudicating election disputes, and the Reform
    Act keeps all of those procedures in place.
        Third, the Reform Act addresses and fills a statutory gap
    by addressing judicial review in a scenario when a Governor
    fails to certify the correct slate of electors. A provision in
    the Reform Act guarantees that expedited federal judicial
    review is available in such cases. Under that provision,
    Federal, Constitutional, or legal challenges brought by a
    Presidential or Vice Presidential candidate will be heard by a
    three judge Federal district court on an expedited basis.
        Any appeals would go directly to the United States Supreme
    Court on expedited review. Finally, the Reform Act fills
    another statutory gap by addressing how Congress should handle
    revised certificates issued by a Governor under the order of a
    state or Federal court.
        The Reform Act made it clear that Congress will accept such
    a certificate. This provision modernizes federal law and
    Congress's process for counting electoral votes. I thank the
    Committee once again for its time and attention on this matter
    and look forward to the Committee's questions.
        [The prepared statement of Mr. Gore was submitted for the
    record.]
        Chairwoman Klobuchar. Very good. Thank you so much,
    Mr. Gore. Next up, Ambassador Eisen.

    OPENING STATEMENT OF AMBASSADOR [RETIRED] NORMAN EISEN, SENIOR
        FELLOW, GOVERNANCE STUDIES, THE BROOKINGS INSTITUTION,
                             WASHINGTON, DC

        Mr. Eisen. Thank you, Chairwoman Klobuchar, Ranking Member
    Blunt, and the very distinguished Members of this Committee for
    inviting me and all of my colleagues to testify today on the
    Electoral Count Act and on the need for reform, and for your
    bipartisan attention to these critically important questions.
        The need for reform is profound. The flaws in the ECA were
    on stark display during the attempted overthrow of the 2020
    election results, an effort which United States District Court
    Judge David Carter described as a coup in search of a legal
    theory.
        As we now know, including from the work of the House
    January 6 Committee, when former President Trump and his allies
    crafted that flawed legal theory that resulted in the
    insurrection, they exploited the flaws and ambiguities in the
    ECA. January 6th has passed, but the danger has not, as this
    Committee well recognizes.
        Many of those who supported the 2020 coup attempt remain
    active in the election denial movement. Donald Trump has
    inspired over 100 election denying candidates from coast to
    coast running for key positions, overseeing elections. Indeed,
    several more won primaries just last night.
        As the Vice Chair of the House January 6 Committee, Liz
    Cheney, has warned, this is an ongoing threat. Reforming the
    ECA is therefore essential to protect our democracy against
    future attacks.
        The ECRA is a significant step forward toward addressing
    that threat. In fact, it represents multiple, significant steps
    forward. But the improvements the ECRA makes are not the sole
    matters that this Committee should focus upon.
        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 unwelcomed manipulation. In my view, the
    Committee should focus its attention on improving four key
    provisions.
        First, the ``extraordinary and catastrophic events'' that
    would allow for the extension of Election Day should be better
    defined. Leaving these terms entirely up to state law without
    guardrails presents an opportunity for mischief by election
    denying officials who are at risk of proliferating.
        Second, the federal litigation provisions should be further
    developed as written. The scant six day window for federal
    litigation in the ECRA is insufficient, particularly in the
    event that Governors or others wrongly certify or refuse to
    certify electors, or otherwise abuse the process. It just does
    not work.
        The elector meeting date should be back to expand the
    period for judicial review, and the 5-day notice requirement
    for convening three judge panels should be waived altogether.
    If I may say on this point, it is 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 law litigation and processes.
        Third, to strengthen safeguards surrounding the process
    once it reaches Congress, the Committee should consider
    clarifying the grounds for objection by replacing lawfully
    certified and regularly given with more precise definitions.
    Those terms have been a source of abuse in the past. They need
    to be addressed.
        Fourth, and finally, we must provide clear procedural rules
    for the congressional counts so that gaps and ambiguities are
    not used to foment chaos. Thank you very much for having me
    today.
        [The prepared statement of Mr. Eisen was submitted for the
    record.]
        Chairwoman Klobuchar. Thank you. Next up, Professor Muller.

        OPENING STATEMENT OF DEREK T. MULLER, PROFESSOR OF LAW,
          UNIVERSITY OF IOWA, COLLEGE OF LAW, IOWA CITY, IOWA

        Mr. Muller. Chairwoman Klobuchar, Ranking Member Blunt,
    Members of the Committee, thank you for the kind invitation to
    testify today. It is a particular honor to speak to two of the
    tellers, Senator Klobuchar, Senator Blunt, who in the Joint
    Session on January 6th, served admirably in the face of great
    scrutiny and danger. Thank you.
        My name is Derek Muller. I am a Professor at the University
    of Iowa College of Law. I teach election law and Federal
    courts. These views are my own and do not reflect those of the
    university or any other organization.
        My written testimony makes five principal points. Broad
    bipartisan consensus is essential to reform the Electoral Count
    Act to ensure that future Congresses have the confidence to
    abide by the rules. The Electoral Count Reform Act of 2022 fits
    comfortably within Congress's Constitutional authority.
        This bill has seven important components which are useful
    and practical ways of handling future disputes. The updates to
    the Presidential Transition Act of 1963 are laudable. Finally,
    there are some small technical corrections that could further
    improve clarity. In the interest of time, I will focus on a few
    of these points, then rely on my written testimony and respond
    any questions.
        In amending statutes like the Electoral Count Act of 1887,
    Congress must develop neutral, sensible rules well before any
    dispute arises in a contested election. That Act was enacted
    with bipartisan consensus. It took too long.
        A series of significant problems in the election of 1872
    left unanswered questions, and they remained unanswered ahead
    of the contested election of 1876, which threw the United
    States into a catastrophic election crisis. Even after that,
    Congress could not find consensus until 1887, with Democrats
    and Republicans joining together to develop a bill that they
    could agree would govern future counting.
        Despite its problems, it served well for over 100 years.
    The Electoral Count Reform Act of 2022 does seven important
    things. First, it clarifies the scope of Election Day.
        Second, it abolishes the failed to make a choice provision
    and substitutes a simpler rule for election emergencies.
        Third, it ensures that Congress receives timely, accurate
    electoral appointments from the states.
        Fourth, it raises the objection threshold in Congress.
        Fifth, clarifies the narrow role of the President of the
    Senate when Congress counts votes.
        Sixth, it enacts new counting rules to define Congress's
    role of the count.
        Seventh, it clarifies the denominator in determining
    whether a candidate has reached a majority. These objectives
    are hardly random. They have their legacy in the same kinds of
    reforms proposed by Members of this Committee and others in
    Congress. These goals are all advanced in the discussion draft
    of the Electoral Count Modernization Act, which was released in
    February.
        These seven are also all goals which were advanced in the
    Committee on House Administration Majority Staff report
    released in January. The mechanisms may differ from proposal to
    proposal, but all serve in the same ends, often quite
    similarly.
        I am confident that the bipartisan working group that
    fashioned the Electoral Count Reform Act of 2022 owes a great
    debt of gratitude for the work in Congress and the work of
    Members of this esteemed Committee, improving the work that has
    been done so far. The bill works within the scope of Congress's
    power under the Constitution to fix the times of elections and
    of concluding them, to expedite resolution of disputes and to
    constrain discretion in the Joint Session when it comes to
    counting votes.
        It does not inhibit the states from resolving disputes in
    state courts, but it does require Congress to treat as
    conclusive the results that come out of states of the courts
    upon the resolution of any election dispute.
        There is wisdom in the specific approach of the bill and
    the things that it does not do, which are just as important as
    the things it does in the event of an election dispute. The
    very last thing anyone wants is uncertainty. Novel mechanisms
    may face scrutiny and judicial skepticism at the very moment
    they are most needed, at a time when they must serve as
    reliable guardrails.
        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. Importantly, in some places, the bill
    retains useful, long standing language from the Electoral Count
    Act to reduce uncertainty that new or different language may
    provide.
        At every turn, the bill offers more clarity, more
    precision, and more stability. The specific text of this bill
    has significant and broad bipartisan consensus. It is neither a
    partisan effort nor a token bipartisan effort. While many speak
    generically about reform, specific language and mechanics
    matter and securing consensus on these topics is not easy.
        The risks of failing to enact the Electoral Count Reform
    Act of 2022 are significant. Some have attempted to exploit
    ambiguities over the years, most significantly in 2020. To
    leave those in place ahead of the 2024 election is to invite
    serious mischief.
        No law can prevent all mischief, but the bill significantly
    strengthens several important things. I have been pleased to
    see such bipartisan consensus on it and there has been very
    little opposition to the heart of the bill. Rare concerns are
    mostly misunderstandings or technical problems. I thank you and
    look forward to answering any questions you have and thank you
    for participating today.
        [The prepared statement of Mr. Muller was submitted for the
    record.]
        Chairwoman Klobuchar. Very good. Thank you very much.
    Mrs. Nelson. Last but not least, remote. Thank you.

       OPENING STATEMENT OF JANAI NELSON, PRESIDENT AND DIRECTOR-
      COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC, NEW
                             YORK, NEW YORK

        Mrs. Nelson. Thank you. Good morning, Chairwoman Klobuchar,
    Ranking Member Blunt, and Members of the Committee. My name is
    Janai Nelson, and I am President and Director Counsel of the
    NAACP Legal Defense and Educational Fund, or LDF. I join my
    colleagues in commending the work of this Committee and
    celebrating the unanimity of support on the need for reform of
    the ECA on this panel.
        I thank you for the opportunity to testify on the perils
    facing our democracy, and on the urgent need to enact
    responsive and expansive federal legislation that prevents the
    sabotage of our elections, sabotage that can happen through
    discriminatory barriers to the ballot and the manipulation of
    election results in ways that disproportionately target
    communities of color.
        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
    had 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. I come before you today to sound a piercing
    alarm. Longstanding voting discrimination is intensifying at
    the same time that efforts at election sabotage through
    manipulation have again come to the fore, accompanied by the
    normalization of political violence.
        Voters of color face the greatest assault on our voting
    rights since Jim Crow. United States 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, but our increasingly diverse
    electorate holds the promise to deliver.
        Those who reject and fear that vision of democracy have
    proven that they are willing to sabotage our elections to avoid
    its fruition, and to destroy our democracy in the process.
        To prevent another January 6th, and to bring our democracy
    back from the brink, Congress must act swiftly and expansively
    to address the full range of these challenges, including
    rampant voting discrimination that has for centuries impeded
    the equal voice and power of voters of color. We also need
    urgent action to resolve ambiguities and curb opportunities for
    abuse in the electoral process. As the other panelists have
    explained, in other words, strengthening the Electoral Count
    Act must be the start of this Committee's and this Congress's
    work, but not the end. We are encouraged by and commend the
    bipartisan working group's thoughtful progress on the ECRA for
    all the reasons I noted. Shoring up the ECA is both a democracy
    issue and a racial justice issue. We also believe the ECA can
    be strengthened further, and I offer the following principles
    as a guide.
        First, any reform should eliminate both ambiguities in the
    law and opportunities for manipulation, while preserving
    voters' ability to enforce their rights under existing law.
        Next, any judicial process to determine the official slate
    of presidential electors for Congress to count should be
    conducted according to established and clear guidelines, and be
    fair and unbiased, both in fact and in appearance.
        That process must yield a single, definitive, and final
    result that is not subject to competing outcomes prior to the
    meeting of the Electoral College. In addition, this process
    must not intrude on voters' prerogative to seek relief against
    discrimination, undue burdens, or due process violations in
    state or Federal court.
        Finally, we recommend clarifying the ECRA's language so
    there is no ambiguity that Congress is conclusively bound by an
    ascertainment as affirmed or revised by a state court, a
    Federal court for statutory or Constitutional reasons, or the
    particular federal judicial review process described in the
    ECRA.
        My written testimony contains more detailed suggestions for
    this Committee's consideration, including ways to improve the
    bipartisan working group's companion legislation so that it
    fulfills its potential as a complement to the ECRA.
        At bottom, however, is this most important point:
    protections against voting discrimination and voter
    suppression, and protections against election manipulation and
    subversion, are distinct yet mutually reinforcing ways to
    prevent election sabotage. Both are necessary to ensure that
    the votes and voices in our increasingly diverse electorate are
    equally heard, counted, and honored. Congress must act now to
    root out voting discrimination and prevent election subversion.
    That all important work begins with this Committee, and I look
    forward to your questions.
        [The prepared statement of Mrs. Nelson was submitted for
    the record.]
        Chairwoman Klobuchar. Thank you very much, Mrs. Nelson.
    Appreciate your testimony, and the spirit of your suggestions I
    feel the vibes from all of our witnesses that we want to move
    on this. I thought I would start with this bipartisan panel of
    witnesses, just with yes or no questions.
        Quick, we know this is a complex area of law and we all
    want to get it right. Do you agree that it is important for
    Congress to update the Electoral Count Act to ensure the will
    of the voters prevails in presidential elections, whatever that
    will may be?
    Mr. Bauer, just yes, no.
        Mr. Bauer. Absolutely.
        Chairwoman Klobuchar. Okay. Mr. Gore.
        Mr. Gore. Yes.
        Chairwoman Klobuchar. Mr. Eisen.
        Mr. Eisen. Yes.
        Chairwoman Klobuchar. Mr. Mueller.
        Mr. Muller. Yes.
        Chairwoman Klobuchar. Thank you. Then last up Mrs. Nelson.
        Mrs. Nelson. Yes.
        Chairwoman Klobuchar. Okay. Do you agree that under
    existing law, the Vice President has no authority to decide
    which electoral votes to count? 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? Mr.
    Bauer.
        Mr. Bauer. Yes.
        Chairwoman Klobuchar. Gore.
        Mr. Gore. Yes.
        Chairwoman Klobuchar. Eisen.
        Mr. Eisen. I agree.
        Chairwoman Klobuchar. Muller.
        Mr. Muller. Yes.
        Chairwoman Klobuchar. Mrs. Nelson.
        Mrs. Nelson. Yes.
        Chairwoman Klobuchar. Okay, last. Under existing law, it
    only takes one representative and one Senator to force each
    chamber to debate and vote on an objection to a state's
    electoral votes. Do you support raising the threshold for these
    objections to require, suggested in this bill, the one-fifth of
    each chamber to sign an objection before it can be debated, as
    suggested in the bipartisan bill? Mr. Bauer. Yes.
        Chairwoman Klobuchar. Mr. Gore.
        Mr. Gore. Yes.
        Chairwoman Klobuchar. Mr. Eisen.
        Mr. Eisen. Yes.
        Chairwoman Klobuchar. Mr. Muller.
        Mr. Muller. Yes.
        Chairwoman Klobuchar. Mrs. Nelson.
        Mrs. Nelson. Yes.
        Chairwoman Klobuchar. Okay. That is a first. All right,
    good. I just thought it was really important, as we look at
    even some of our questions will be about details, that we agree
    that on the main parts of this bill there is agreement, and we
    can always make improvements. I am sure there will be
    discussions about that.
        One area that has received a lot of attention is the role
    of the Federal courts in ensuring state officials comply with
    their federal duty to certify electors who reflect the outcome
    of the election.
        Mr. Eisen, briefly. You have expressed some concern on the
    judicial review procedures and the timing of them, that there
    should be enough timing to resolve the disputes before the
    Electoral College meet. Can you talk about that very briefly,
    and what you think would be helpful?
        Mr. Eisen. In the 6-day window, you have got to get through
    briefing, argument, decision, appeal, first with the three
    court panel, then with the Supreme Court. All of this is
    happening in the context of possible state ongoing proceedings,
    and it will put a burden on the Governors, the AGs, and the
    Secretaries of State who are engaged. It simply is not workable
    to do it in six days.
        I recognize that on the one hand, the states are going to
    be pushing for more time. On the other hand, the
    parliamentarians and all of you and those in the House who must
    handle this are going to want--pushing in the opposite
    direction for enough time to get ready. But I think getting it
    right----
        Chairwoman Klobuchar. Getting that time right. That seems
    like something. Okay. Mr. Bauer, you want to respond to that?
        Mr. Bauer. Yes. I do not share the acuteness of Norm's
    expressed concern on this point. I think, first of all, it is
    very likely that lawsuits to challenge, if you will,
    questionable certifications are likely to arise well before
    that six day period. I do not think is going to occur right at
    the beginning of the 6-day period.
        Also, I think it has been clear over time that courts have
    the mechanism and recognize the duty to expedite as necessary
    the resolution of these claims.
        Thirdly, I do want to stress again that under the Electoral
    Count Reform Act, we are 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.
        I think that, again, that will focus the court's attention
    and enable these matters to be addressed expeditiously, even
    within a 6-day period. If, in fact, it would help the passage
    of the bill to add a few days, and it was possible to
    accommodate those additional times without pressure on the
    other end as Congress prepares for the Joint Session, of
    course, you know, that certainly can be considered.
        Chairwoman Klobuchar. Okay. There is widespread concern
    about a provision in the current law--the current law--that
    would allow state legislatures to declare a failed election,
    and appoint their own electors, which would be appointing their
    own electors but ignoring the votes in their states. Mr. Bauer,
    quickly explain how the bipartisan bill solved this problem.
        Mr. Bauer. It solves this problem, in my view, very
    effectively by providing that states may, pursuant to laws in
    effect before Election Day, determine that extraordinary and
    catastrophic events have occurred that necessitate a
    modification in the period of voting. That is key.
        The remedy here is a modification in the period of voting.
    It does not allow the states to use the excuse, and that is
    what was most of the concern, about the failed election
    provision under the current ECA to redo the election, to throw
    the old one out, and conduct another one.
        I think that it very effectively addresses the concerns
    that we have over legitimate problems that may arise with
    cyberattacks, power outages, natural disasters, while at the
    same time preserving this fundamental principle that laws are
    that due process requires us to honor the results of elections
    that reflect the popular vote under the rules in effect, on
    Election Day.
        Chairwoman Klobuchar. Okay. Ambassador, you have expressed
    some concern that the language in the bipartisan bill allowing
    states to extend Election Day during an extraordinary and
    catastrophic emergency, is vague? I mean, I am glad that they
    had an exception, and something we had in our bill, Senator
    King, and presented for these catastrophes. You can have
    weather catastrophes, right. Do you have anything you can
    suggest then that you think could make this more defined?
        Mr. Eisen. Chairwoman, if this Committee were in charge,
    solely in charge of administering extraordinary and
    catastrophic, the anxiety that many of us feel in looking at
    the election denier landscape and the brazenness and the
    willing to go to the very--the willingness to go to the very
    limits, that alarm would not occur.
        But I think given that Congress has defined this term,
    extraordinary and catastrophic, you can put some guardrails
    around that to prevent the bizarre idea which can be done
    before Election Day by an election denying Governor,
    particularly if there is a trifecta, if they have both houses.
        Chairwoman Klobuchar. Okay. Just, if you could--any
    specific language and you can give it to the Committee later?
        Mr. Eisen. Force majeure--the guardrails could be force
    majeure--that would be another one.
        Chairwoman Klobuchar. Okay, I have one last question,
    Mrs. Nelson. You testified that reforming the Electoral Count
    Act is only one step in protecting our democracy. I know you
    would like to see some changes. We can go over those later. But
    could you speak to why additional legislation like the Freedom
    to Vote Act and John Lewis Bill would complement the work that
    we have done here? Mrs. Nelson.
        Mrs. Nelson. Yes, because election sabotage happens not
    just after ballots are cast and votes are tabulated. It can
    happen in the way that the electorate is shaped through voter
    suppression laws and through laws that erect barriers to the
    ballot.
        The John Lewis Voting Rights Advancement Act is critical to
    restoring and strengthening core protections against voting
    discrimination that we lost in the Voting Rights Act of 1965
    when the Supreme Court struck down the preclearance provision
    and disabled it.
        We also need the Freedom to Vote Act to set minimum
    standards for access to the polls so that voters in Florida and
    Georgia and Texas can benefit from same day voter registration,
    for example, or robust vote by mail and ballot return
    procedures, just like voters in California and Colorado and
    other states. The uniformity of those voting measures will
    restore and bring greater confidence to our electoral system
    and will complement the work of the ECRA.
        Chairwoman Klobuchar. Thank you very much. Senator Blunt.
        Senator Blunt. Thank you, Chair. Mr. Gore, Professor
    Muller, and Professor Bauer, you all in each of your
    testimonies, you highlighted the importance of--that bill had
    it in clarifying that states must use laws enacted before
    Election Day. Let me put two or three thoughts out there and
    you can all three respond to this.
        What potential problems would that provision solve? How
    does that provision help maintain the integrity of the
    elections? Does the provision still uphold the rights of states
    to actually craft their own laws regarding elections? Let's
    just start with Mr. Gore here, right in front of me. We will
    go, Mr. Gore, Mr. Muller, and
    Mr. Bauer.
        Mr. Gore. Thank you, Senator Blunt. That is a key provision
    of the Reform Act, because it leaves the people and the
    people's representatives in the state legislature in charge of
    prescribing the rules for presidential elections as the
    Constitution directs.
        It would prevent efforts to change the rules of the
    election after the game has been played. It is a fundamental
    premise of our elections that they are held in a free and fair
    manner under rules that are set in advance, followed during the
    election, and are not changed after the election.
        The Reform Act is a key provision that would prevent
    efforts to change the rules after votes have been cast,
    counted, and compiled. It would leave state legislatures in
    charge of setting those rules as the Constitution directs and
    would ultimately empower state legislatures to set those rules
    in the manner that they deemed best in each individual state.
        Senator Blunt. Okay. Mr. Muller.
        Mr. Muller. Thank you. That provision works well in tandem
    with abolishing the failed to make a choice provision. The goal
    is that there is one Election Day, the first Tuesday after the
    first Monday in November. All the rules are going to be in
    place then and we are 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 did not exist at the time.
    There was a lot of conversation about this in Florida in 2000,
    Louisiana in 1960. This was a problem in 1876 as well.
        Making sure that we have stable rules up front, that we
    know we are having a popular election, and all of those rules
    are going to control and govern the recount and other processes
    that happen after Election Day is crucial to ensure that the
    votes and the voices of the people will be represented when
    that certificate gets to Congress.
        Senator Blunt. Mr. Bauer.
        Mr. Bauer. I completely associate with the comments just
    made by Mr. Gore and Professor Muller. I think that this is a
    crucial part of Electoral Count Act reform and well reflected
    in the Electoral Count Reform Act. The Congress fixes the date
    under the Constitution of the election.
        Due process requires that those--that congressional
    authority be respected, and that state legislatures do not
    attempt after the fact, once the results are known, to change
    the rules that were in place and on which the voters relied. It
    is essential for that reason within our Constitutional
    framework and for the additional points that were made by Mr.
    Gore and Professor Muller.
        Senator Blunt. Thank you. Ambassador Eisen, does anything
    in the bipartisan proposal displace any of the existing federal
    or state claims that are available? Now, it does seem like
    there are plenty of places to go to court, and as others have
    pointed out, to challenge problems that are perceived or real
    immediately after the Election Day itself. Is there anything
    that prevents all of those options from continuing to be
    available?
        Mr. Eisen. Options do remain available. I will note, and I
    am going to the place in the bill, that at the end of the 6-day
    period, for recon--in order that the, here we are, in order
    that the certificate have a binding effect here in Congress,
    that the subsequent state or federal judicial relief, this is
    in 5(c)(1), has the effect of--in order for that to have
    effect, it will cutoff the state review.
        We are establishing a cutoff here. I know there is some
    concern by those who actually have to administer this that--
    with the length of that period. That is why we would like to
    have more time in order that state and federal procedures can
    run their course.
        Senator Blunt. Mr. Gore, do you think more time is a
    helpful thing where you have all of these current remedies in
    law?
        Mr. Gore. I do not believe that more time is necessary to
    allow the courts to adjudicate any disputes in presidential
    elections in the future for several reasons.
        First, the Reform Act preserves all of the existing state
    procedures for adjudicating those disputes. The federal claim
    or the federal suit would be filed in most cases, if not all
    cases, after a state process already has played out.
        Second, it is going to be a very unlikely case that would
    be resolved within only six days. Most states certify the
    results of their elections well before that six day period
    would begin. For example, in 2020, Delaware certified its
    election results on November 18th, nearly a full month before
    the Electoral College convened.
        Third, the issues presented in any kind of federal suit
    would be very narrow. The issue would only be whether the
    Governor had failed to certify the correct slate of electors as
    required by state law in existence prior to Election Day.
        Fourth, as I think Mr. Bauer may have mentioned before, the
    states have proven and the courts have proven very adept at
    adjudicating these disputes in a very quick manner.
        That includes not just state courts that deal with election
    contests and challenges, but also Federal courts, including the
    United States Supreme Court, which in many cases has resolved
    election disputes very, very quickly.
        Senator Blunt. Thank you. Thank you, Chairwoman. I may have
    other questions later or for the record, but we have got a
    number of Members here so we can move on.
        Chairwoman Klobuchar. Yes, we can do some later. Senator
    Warner.
        Senator Warner. Thank you, Chair Klobuchar. Let me thank
    you and Senator Blunt for giving the bipartisan group the time
    and space to try to put this together. I would point out, I
    know this is not the popular perception that Americans have, we
    have had a pretty good run of bipartisan activity in the
    Senate, the Infrastructure bill. There was a group that came
    together, the Chips bill.
        There was a group that came together on the guns
    legislation, the budget, the Veterans bill that was passed
    yesterday, and now the ECRA. I know this is again not popularly
    held by the public, but there are a group of reasonable
    Senators in both parties that actually try to get to yes.
        I also want to quickly point out that while we are on the
    Electoral Count Act today, there was a lot of good work done by
    this group as well on issues around postal reform, in terms of
    elections, making sure that absentee ballots would be swept and
    counted in an appropriate way, that there would not be changes
    before an election inappropriately by any kind of postmaster
    general that might be political. I would urge the Committee
    take a look at those.
        We also, I think, did some good work on efforts around
    voting machines. For example, we already have in the law making
    sure that voting machines do accurate counts. We also have
    appropriate in the law that voting machines can withstand
    environmental challenges if they get rained on, flooded, wet.
        One of the things we have not done and that I think is very
    appropriate for this Committee to take up, would be making sure
    that we have de minimis security standards and cybersecurity
    standards in voting machines.
        Senator Blunt and I, Senator King are on the Intelligence
    Committee, and we have seen efforts in the past to use
    cyberattacks on our voting systems and putting in a voluntary
    de minimis cyber standards for our voting machines, I think,
    just makes an enormous amount of sense. I also want to
    compliment Professor Muller.
        You have a series of technical amendments to the
    legislation that we put together. I am going to tell you, from
    my standpoint, I think all four of your technical amendments
    dramatically improve the bill and clarify some of the
    misreadings. While I am not going to get in my 2 minutes and 50
    seconds a chance to go through all of them, I hope, and----
        Chairwoman Klobuchar. We will give you an extra minute,
    Senator Warner.
        Senator Warner. Or a more adept Committee Member may point
    to those, but I also think Professor Muller, Senator Blunt, as
    you know, has a Republican background. I just want to say his
    improvements would get my support. I do not want to speak for
    Senator Collins and Senator Manchin, but I have run it by them
    as well. I think you do some very good work.
        I do want to get to a question, though, and that is that
    Mr. Bauer, I want to thank you and your colleague, Jack
    Goldsmith, as well as all the other law professors, for your
    help in drafting the ECRA. As probably Senator Capito will
    indicate, one of the things that we wrestled with the most was
    determining the role that the Federal courts might have in
    resolving a disputed election.
        I think some of the commentary out there, frankly, is off
    base. One of the reasons why I think Professor Muller's
    corrections may help. Let's, Bob, if we could go through a
    lightning round in my last minute and 50 seconds, does the ECRA
    create a new cause of action?
        Mr. Bauer. No, it does not.
        Senator Warner. Does the ECRA expand the jurisdiction of
    the Federal courts?
        Mr. Bauer. No. It only provides for expedited reviews of
    cases that would be brought under existing law.
        Senator Warner. Does the ECRA in any way diminish the power
    of state courts?
        Mr. Bauer. No, it does not.
        Senator Warner. Now, you have said that the ECRA simply
    clarifies the role of Federal courts under existing law. Now,
    we spent a lot of time going back and forth on this and had
    lots and lots of good work. Can you go ahead and describe that
    role of the Federal courts in this process?
        Mr. Bauer. The point that I was making was that the sort of
    claim that we are talking about here that might be brought by a
    Presidential and Vice Presidential candidate challenging the
    lawfulness of a certificate that either a state executive
    official might put forward or a state legislature might put
    forward, is an action that could be brought today under
    existing law, under extant law by the Presidential and Vice
    Presidential candidates.
        What the Electoral Count Reform Act does, and I think quite
    effectively, is simply provide on this very unforgiving
    timetable we face in any event, for expedited review. It
    establishes venues and procedures for expedited review, review
    by a three judge court, and then review by the United States
    Supreme Court.
        But it does not alter existing law, it does not, as your
    question earlier suggested or asked me to respond to, it does
    not create any new causes of action. It is a procedural
    provision to allow this narrow kind of claim brought by these
    particular plaintiffs to receive expedited treatment.
        Senator Warner. That is the position not only of you, but
    Mr. Goldsmith and the series of law professors who worked with
    the group?
        Mr. Bauer. To my knowledge, speaking, of course, for myself
    and I know this to be also the position of Professor Goldsmith,
    the answer is yes. I know of nobody who has argued to the
    contrary that I have discussed this with in the law professors'
    community.
        Senator Warner. There was probably no issue that we spent
    more time on, and maybe Senator Capito will want to comment on
    this. I think some of the critiques maybe have been misguided.
    I have got a whole bunch of folks in my office where I go
    through those great corrections that Professor Muller has to
    the legislation.
        But I think if there was any ambiguity, some of his
    technical fixes make some sense. I, again, thank the Chair and
    the Ranking Member for giving this gang a chance to do some
    work, and would welcome other gang members in future endeavors.
    Thank you, Madam Chair.
        Chairwoman Klobuchar. Senator Capito.
        Senator Warner. The tats that we brought in the ECRA gang
    tats, do not--we should not show those off?
        Senator Capito. I am not getting into this one. Thank you,
    Madam Chair, and also Ranking Member Blunt for having this
    hearing today. To my colleagues, Senator Manchin and Senator
    Collins, for testifying,
        I want to thank Senator Warner, as well as Members of the
    groups/gang, whatever we are calling ourselves, and everybody
    else in this Committee. We have had several hearings on this
    issue. I am going to make a statement in what time I have left.
    I hope I have time to ask one question, but I want to thank the
    witnesses today, not just for what you are doing here today,
    but what your lending of support and expertise throughout this
    entire process.
        We did labor back and forth on the best way and I am really
    encouraged by what I hear. I would also like to submit for the
    record a letter of support from the R Street Institute, who is
    in support of the ECA reform efforts. Without objection, I will
    put that in there.
        [The information referred to was submitted for the record.]
        Senator Capito. One of the most important duties of Members
    of Congress is to certify the winner of presidential elections.
    It is not our job to adjudicate lawfully cast ballots or
    overturn the will of the American voters. I remain a strong
    supporter of our electoral system, which provides power to the
    states to tailor their election laws to the specific needs of
    their citizens.
        As federally elected officials, we must respect the
    Constitutional role reserved for the states and not abuse our
    oversight powers, which I think this bill lines out. I am proud
    to have joined 15 of my colleagues from both sides of the aisle
    in introducing the Electoral Count Reform and Presidential
    Transition Improvement Act.
        This legislation is the only bipartisan bill that would
    amend the Electoral Count Act of 1887. January 6th was a dark
    day here in our Capitol and for our democracy. But the
    politicization of the counting of electoral votes has been a
    problem for decades, predating the most recent presidential
    certification.
        Members of Congress have objected to certified electoral
    results as a means of changing political outcomes of electoral
    results that they do not like. Despite then George Bush's--
    President George Bush's clear win over then Senator John Kerry,
    the concurrence with several House Members of a single Senator
    forced a vote in both chambers over whether to overturn Ohio's
    electoral results because of the rules set by the Electoral
    Count Act with just a single member.
        I am glad to see that we have on record that we all believe
    that that is a flawed proposition. Senator Barbara Boxer's
    objection forced Congress to deliberate on whether to discredit
    the popular vote in the State of Ohio. This resulted in a vote
    of 1 to 74 in the Senate, and 31 to 267 in the House of
    Representatives.
        In 2017, House Democrats tried to object to results in nine
    states, to contest President Trump's electoral victory. Had a
    single Senator had the bad sense to sign these objections, we
    would have been required by law to vote on these frivolous
    objections. These precedents, along with efforts to pressure
    Vice President Pence to discredit the lawfully cast ballots of
    certain voters, demonstrates a clear need for reform in this
    certification.
        Over the course of seven months, we have worked on this,
    and I am proud that we have put together a package that I think
    can use improvements and tweaks, as we have talked about, but
    also hits at the core issues.
        The legislation solely solves efforts to subvert lawfully
    given electoral results in our presidential elections, and
    provide clear guidelines, I think clarity is sort of the word
    of the day--clarity is what we have been missing for over those
    hundred years. It is not a partisan power grab to federalize
    our elections or use Congressional levers of power to dictate
    what outcomes a single party might prefer.
        These efforts, these legislative reforms, offer common
    sense solution to a recurring problem. In consultation with
    many of you, I am hoping that this bill can gain enough support
    to pass both chambers and be signed into law by the President.
    I would like to ask in my remaining short period of time, I
    feel quite honestly, and I do not know what the Chair feels
    about this, that we have a sense of urgency here.
        Let's be real. We are in it. We are several months away
    from a midterm election, but as soon as we turn the corner into
    January or into another lengthy two year presidential election,
    my personal feeling is we need to button this up before the end
    of the year because that will then set the clarity to move
    forward for the next election.
        I know I might get the answer that none of you think that
    you can tell Congress when they should and how they should pass
    things, but since you are all here in your personal capacities,
    I would like to know if you have an opinion on the urgency to
    get this wrapped up by the end of the year. Mr. Gore, I will
    start with you.
        Mr. Gore. Thank you, Senator. I would not presume to tell
    Congress----
        Senator Capito. I knew you would say that----
        Mr. Gore [continuing]. but I certainly agree that now is
    the time to act. The Reform Act is a beneficial piece of
    legislation and makes a number of improvements. It is pending
    before the Congress now, and the moment is here for Congress to
    act and adopt these important reforms.
        Senator Capito. Thank you. Ambassador Eisen. I would like
    to say on a point of personal privilege, I enjoyed visiting you
    when you were the Ambassador. Thank you for your hospitality.
    It is nice to see you again.
        Mr. Eisen. I was thinking back to the nice and bipartisan
    time that we had in Prague. I think it is urgent. We must seize
    the moment. But we must seize it correctly, taking account, and
    I know no one feels more strongly than you do, Senator Moore
    Capito, taking account of the needs of those state officials
    who actually are going to have to deal with all of this. They
    need more time.
        Senator Capito. Right. Mr. Muller.
        Mr. Muller. I want to echo the point on the states, because
    the more lead time you give them saying these are the rules,
    these are the deadlines, this is what your courts have to
    resolve in a speedy time, this is when the certifications have
    to take place. There is so much that has to happen behind the
    scenes in the 50 states. The more lead time we give our
    hardworking election officials in the states, the better.
        Senator Capito. Thank you. Mr. Bauer.
        Mr. Bauer. I share the expression of humility about
    weighing in on when Congress should act, but I could not agree
    more that is urgent, and I would certainly be, I will put it
    this way, delighted to see and I think it would be good to see
    Congress act before the presidential election cycle begins.
        Senator Capito. Thank you. Mrs. Nelson.
        Mrs. Nelson. Yes, I concur with my colleagues. This is
    urgent reform that is needed. By Congress advancing this as
    soon as possible, it frees Congress up to do more to protect
    our elections and to enact other legislation that will
    complement and enhance the ECRA.
        Senator Capito. Thank you. Thank you, Madam Chair.
        Chairwoman Klobuchar. Well, thank you very much, Senator
    Capito, and thanks for your work. I strongly agree with you on
    the timing issue. Next up, Senator King and then Senator
    Padilla, I believe. I do not think we have anyone else.
    Everybody has been patiently waiting. Senator King.
        Senator King. I want to raise an issue that has not been
    discussed. All of you very comfortably asserted that this was
    Constitutional, that the ECRA was Constitutional. Mr. Muller, I
    think you used the term ``well within Constitutional bounds.''
    I am worried about the implications of the so-called
    independent Legislature theory. The theory basically holds that
    the there is a difference, there is a subtle difference between
    the election clause as a clause in Article 1 and the election
    clause in Article 2.
        Which Article 1 says, Legislatures and the states shall set
    election rules, but then semicolon, Congress may amend or
    override those rules. In the election clause for the President,
    it talks about the states shall select electors in a manner the
    Legislature shall direct. There is no provision for
    congressional, express provision as there is in Article 1.
        There are those who assert, and apparently we now have
    three justices--Thomas, Alito and Gorsuch--who appear to accept
    this independent Legislature theory that nothing can override,
    and they can do anything they want whenever they want.
        Mr. Bauer, let me start with you. Since you are a graduate
    of the same law school that I am, I will give you that, I will
    give you the privilege of beginning. What do you think of this
    theory, and is this a concern in the context of what we are
    discussing here today?
        Mr. Bauer. No, I do not believe it is. There has been a lot
    of different meanings assigned to the term independence, state
    legislative doctrine, but 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. There
    are constraints, and I do not think in the most extreme form
    that somebody might suggest that one might understand dependent
    state legislature doctrine.
        I do not think that would be an accurate statement of what
    is available to state legislatures under our Constitution.
        Senator King. Mr. Muller, your thoughts.
        Mr. Muller. Congress has the power to choose or to define
    the time of choosing electors. One of the really important
    things this bill does is by eliminating the failed to make a
    choice provision and saying all of the rules have to be in
    place as of Election Day, then it puts in place that if you are
    going to hold a popular election, we are going to follow those
    rules.
        There is no opportunity to show up later and do something
    else. While there might be in the most aggrandized theory of
    the independent state legislature to say the Legislature can do
    whatever it wants, perhaps that is 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.
        Senator King. The power in the Congress to set the date is
    a constraint on the Legislature acting retroactive.
        Mr. Muller. Correct.
        Senator King. That is reassuring. Mr. Gore, do you agree?
        Mr. Gore. I do agree that the independent state legislature
    doctrine is not implicated by the Reform Act, and I agree with
    Professor Muller's reasons for that. I will just add that this
    provision that clarifies that the governing law for
    presidential elections is state law enacted by state
    legislatures prior to Election Day, further allays any concern
    that there might be under that doctrine.
        Senator King. Do you feel that the Electoral Reform Act
    adequately deals with the rogue Governor problem of a Governor
    who basically refuses to certify? Because we have got people
    running for Governor who are saying, I would not have certified
    in 2020. Is that addressed in these bills? That was something
    we tried to address in our draft bill. Mr. Gore.
        Mr. Gore. Existing law already contains mechanisms to
    address the scenario of a Governor failing to certify a slate
    of electors or certifying the incorrect slate of electors. As I
    mentioned before, state laws have robust procedures for
    adjudicating election disputes, including that kind of dispute.
    The Reform Act does not displace any of that. It preserves all
    of those processes and procedures. To do that----
        Senator King. Do you think the current procedures are
    adequate and the Reform Act does not need to address this
    subject?
        Mr. Gore. I think the Reform Act does not need to address
    this subject because there are legal remedies in place at the
    state level, and to the extent there are also Federal,
    Constitutional, or statutory challenges that could be brought,
    the Reform Act also leaves those mechanisms in place.
        Senator King. Mr. Bauer, do you agree with that conclusion?
    That the rogue Governor issue is adequately dealt with in
    existing law. It does not need to be addressed in the Reform
    Act?
        Mr. Bauer. Well, certainly it is addressed under existing
    law. I think there are remedies available under existing law.
    But I would also point out, again, that it is very effectively
    addressed as a procedural matter through the expedited judicial
    review provisions that apply to the lawsuits we discussed
    previously. That Presidential and Vice Presidential candidates
    can bring to the challenge a certificate that a state executive
    or state legislature wrongfully puts forward, is the correct
    one. It does touch on that, certainly by expediting relief
    available under existing law.
        Senator King. Mr. Muller, one final question. We have got
    the voting period potentially modified by, ``extraordinary and
    catastrophic events.'' Is that an adequate definition? Do you
    feel that it provides reasonable guidance that can be
    litigated? Or does it create an opening and an ambiguity?
        Mr. Muller. In my judgment, first we have to think about
    the status quo, which right now is that if there is--failed to
    make a choice, the Legislature can do whatever it wants,
    essentially. By abolishing that and replacing it with this
    provision is a dramatic improvement. The only remedy that can
    happen is a modification of the voting period, not suspending
    or delaying the election.
        Senator King. But what if a Legislature says, we had
    widespread fraud in the city of Philadelphia. That is an
    extraordinary event, and we have to throw out the results.
        Mr. Muller. Right. Extraordinary and catastrophic, I think
    are understood not to include allegations of voter fraud. As an
    independent constraint of federal law, I think it would
    prohibit states from enacting laws like that.
        States already have emergency election laws on the books.
    To my knowledge, none of them define voter fraud as a basis for
    an emergency invocation of executive authority. It offers an
    independent federal constraint while relying on the stable
    existing state mechanisms for handling catastrophes and
    emergencies in elections.
        Senator King. Mr. Gore, are you satisfied with
    extraordinary and catastrophic?
        Mr. Gore. I think that that is another issue that is best
    left to the states to decide again before Election Day for the
    reasons that Professor Muller has laid out.
        Senator King. Thank you. Thank you, Madam Chair.
        Chairwoman Klobuchar. Thank you. Senator Padilla. Senator
    Cruz is willing to have you go next, even though he is next,
    and appreciate that. Thank you. Senator Padilla.
        Senator Padilla. Thank you very much. He shares my pain,
    going back and forth to Judiciary Committee. Same day, same
    time. Thank you for the indulgence. Now, thank the three for
    your in-person testimony and our two witnesses that are
    participating virtually. I agree that it is critical that we
    modernize and clarify the Electoral Count Act.
        I am grateful for that bipartisan group of Senators that
    have come together to work on this issue. But I do have some
    questions for our witnesses, and not just how we can best fix
    this law, but for a moment, I think it is also important for
    this Committee and for this hearing to focus on two other
    related points about the Electoral Count Act reform.
        First, while the ambiguous text of the current Electoral
    Count Act left room for exploitation on January 6th, the text
    did not exploit itself, people did. The former President did.
    Senators, Members of Congress did. 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.
        While fixing the ECA is important, I think it is also
    important to remember why we need to do so in the first place.
    Because bad faith actors stand waiting in the wings to try
    again to exploit the text again for their own cynical ends.
        Second, fixing the ECA would not do anything to remedy the
    significant barriers to ballot access that far too many voters
    across the country continue to face.
        Fixing the ECA might make it harder to cheat in our
    elections. We hear that a lot from our colleagues, and we
    should absolutely do that. But I hope that we can soon find our
    way back to make it easier to vote as well. My first question
    is for Mrs. Nelson.
        I know she is participating virtually but let me ask Mrs.
    Nelson to elaborate on the second point I just raised. Can you
    please expand on your testimony regarding the barriers to
    access that voters across the country will continue to face,
    regardless of whether or not we reform the Electoral Count Act?
        Mrs. Nelson. Yes. Thank you, Senator Padilla, for that
    question. As I said, both orally and in written testimony,
    election sabotage does not occur only once a ballot is cast. It
    is also determined by who gets to cast a ballot in the first
    place and under what conditions. We know that voter
    discrimination and voter suppression are still rampant in our
    electoral system.
        We know that there have been hundreds of bills proposed and
    many passed in states across the country that limit access to
    the ballot and that particularly have a disproportionate impact
    or were directly targeted at black and brown and other
    marginalized voters.
        What the Electoral Count Reform Act will do is to resolve
    many of the ambiguities concerning how votes are counted and
    what certifies an election and ascertainment, and to shore up
    so many ways that the exploitation of election results might
    occur. But it does not deal with the process of inputs of who
    gets to vote and under what conditions.
        That is why it must be complemented by legislation that
    protects the right to vote and restores the Voting Rights Act
    to its full capacity and creates uniform standards across the
    country for voters that cannot be manipulated so that voters
    cannot be discriminated against based on race or another
    protected characteristic.
        Senator Padilla. Thank you so very much. My second question
    is more of a speed round for all the witnesses, is as follows.
    Now, the bipartisan group of Senators that engaged in a serious
    effort to address some of the major vulnerabilities of the
    current ECA text, I appreciate their work. Now, the bill takes
    serious steps toward reducing, excuse me, the likelihood that
    the law can be exploited again as it was on January 6th. But
    the Committee----
        Chairwoman Klobuchar. You can take a second. We are fine.
    We will give some extra time. We are all in a good mood here
    today.
        Senator Padilla [continuing]. but the Committee has
    jurisdiction on elections. I would like to hear just briefly
    from each of you. We know what is in the bill. Is there
    anything else that you would suggest to this Committee that be
    added to the bill to make it even better? Let's start with Mr.
    Gore and work our way down the table, then to the witnesses
    participating virtually.
        Mr. Gore. Thank you, Senator. I do believe that some of the
    technical corrections that have been suggested to the bill by
    Professor Muller and others are appropriate. We had a back and
    forth earlier about the time period for bringing challenges
    under the Reform Act and this question of whether six days is
    sufficient.
        I do believe that the 5-day notice provision in 28 U.S.C.
    2284 for actions brought before a three judge court involving a
    state officer or a state official should be waived for these
    kinds of cases just to ensure that there is as much time as
    possible to resolve any Federal, Constitutional, or statutory
    claims.
        Senator Padilla. Ambassador.
        Mr. Eisen. Thank you, Senator. I think extraordinary and
    catastrophic should be defined. I think the timing should be
    extended. We still had state led litigation going in 2020
    during these--after the so-called state harbor and after the
    Electoral College met. I think that lawfully certified and
    regularly given needs to be defined better to prevent mischief
    here in Congress.
        There--in my testimony, I have laid out some procedural
    specifications that I think is important to put in. If you call
    those clarifications and technical corrections, I am all for
    them. I do appreciate the huge bipartisan effort.
        Senator Padilla. Mr. Muller.
        Mr. Muller. With Senator Warner's endorsement, I think I
    will rest on the four recommendations I put in my written
    testimony.
        Senator Padilla. Thank you very much. Mr. Bauer.
        Mr. Bauer. I do not think there is a gaping hole in the
    statute. I do think that there are technical corrections of the
    kind that I understand Professor Muller has advanced
    clarifications that could well be in order and could help to
    secure answer questions and secure bipartisan passage. I would
    contrast that with any glaring weakness in the design. I do not
    think there is any glaring weakness in the design, but those
    technical corrections and clarifications, it seems to me, are
    appropriately considered.
        Senator Padilla. Thank you. Mrs. Nelson.
        Mrs. Nelson. Yes. I shared some principles that we hope
    will guide this Committee's consideration of any tweaks to the
    ECRA. But I will state some more specific recommendations. We
    think that with respect to the timing, while we are not
    promoting a particular time period or expansion, that the 6-
    days for litigation is rather tight as we consider what needs
    to happen within that time period. We urge the Committee to
    think about some expansion of time for litigation and to ensure
    that there are not any unintended consequences.
        We have also raised some issues concerning the assignment
    of judges for the judicial process to ensure that there is no
    actual, and more importantly, no appearance of bias that may
    undermine public confidence in the process.
        We also believe that the right to a mandatory appeal to the
    Supreme Court is something that this panel should reconsider
    and think about ensuring the best process for the Supreme
    Court's review of these all important issues when they arise
    through the federal judicial process outlined in the ECRA.
        Then also to make it very clear that the process in the
    ECRA does not supplant or supersede any state or Federal court
    avenues. I think that we have articulated that several times in
    this discussion today, but we do want to reiterate that point,
    because it is very important that voters still have an
    opportunity to vindicate their rights under state and federal
    law outside of that process.
        Senator Padilla. Thank you. Thank you all. Thank you, Madam
    Chair.
        Chairwoman Klobuchar. Okay. Thank you. Good question,
    Senator Padilla. Senator Cruz.
        Senator Cruz. Thank you, Madam Chair. Welcome to each of
    the witnesses. Professor Muller, Article 2, Section 1, Clause 3
    of the Constitution provides that the President of the Senate
    shall, in the presence of the Senate and House of
    Representatives, open all the certificates, and the votes shall
    then be counted.
        The 12th Amendment likewise provides the very same text,
    the President of the Senate shall, in the presence of the
    Senate and House of Representatives, open all the certificates
    and the votes shall then be counted. Why, in your judgment, do
    you believe the framers gave that responsibility to the
    President of the Senate and to the House and Senate?
        Mr. Muller. Thank you, Senator. I think in terms of
    considering the separation of powers, there was understandably
    the goal of not to have Congress choose the President. But
    there also had to be some resolution of who was the President
    and some determination of the counting.
        I think as far as I recall from Madison's debates of the
    convention, the notion was that this would largely be a
    ministerial task. To the extent that any disputes arose, it was
    not something that was on the minds of those at the convention.
    But undoubtedly very early on, it was recognized that there was
    going to have to be these actors that were involved.
        By the time the 12th Amendment was enacted, it fell to the
    presiding officer of this Joint Session, which was the
    President of the Senate, to sort of handle the ministerial
    tasks. By 1804 it was recognized, Congress counted the votes.
    It was not until the mid-19th century that we started to have
    real problems about resolving those disputes.
        But at the very least, to the extent that Congress was this
    body, this federal body that would typically handle political
    questions for its own members, it seems like an appropriate
    analog that to the extent there were disputes about the
    election, it would handle them in that Joint Session together,
    to the extent that any disputes arose.
        Senator Cruz. Do you believe that there was any judgment or
    discretion expected of either Congress or the Vice President in
    that process?
        Mr. Muller. There was--in my judgment, there was no
    discretion for the Vice President, the President of the Senate.
    There were suggestions in a debate that happened in Congress in
    1800 that there might have to be some questions about what
    happened during the counting of electoral votes and some
    discretion that Congress might have.
        That has been a pretty narrowly defined role, and
    especially over the years as we trust the state courts in the
    states to resolve the process, very rarely has Congress been
    involved in relitigating those questions, and so it has had a
    role and recognized the role in the past, but a narrow one when
    it comes to resolving those controversies that come to
    Congress.
        Senator Cruz. As everyone here knows, the election of 2020
    was extraordinary in many respects. As I analyzed what the best
    approach for Congress should be to that situation, I look to
    history, and I look to precedent.
        To my mind, the most applicable precedent is the election
    of 1876. As you know, in the election of 1876, that was the
    race between Rutherford B. Hayes and Samuel Tilden, and that,
    much like 2020, was a hotly contested race. There were serious
    disagreements, and in particular, there were serious
    allegations of voter fraud from three different states, from
    Florida, from Louisiana, and South Carolina. A total of four
    states, Florida, Louisiana, South Carolina, and Oregon
    submitted two slates of electors.
        Congress, exercising what you just described as the
    judgment and discretion given it by the framers, had to resolve
    what to do in that instance. In 1876, Congress did not throw
    its hands in the air and say, well, there are serious
    allegations of voter fraud, but we are helpless, we are simply
    ministerial clerks, so we cannot assess this.
        Instead, Congress did something very different. Congress,
    as you know, appointed what it called an Election Commission.
    This Election Commission was a unique creature in
    Constitutional law and in our Nation's electoral history, in
    that it consisted of five Senators, five House Members, and
    five Supreme Court justices.
        That Election Commission, in turn, was empowered to assess
    the evidence of voter fraud, to make conclusive determinations
    that in turn would go forward and determine who would be the
    next President. Do you believe Congress made the right decision
    in 1876 establishing the Election Commission to assess the
    claims of voter fraud?
        Mr. Muller. It is a very hard question. I think, in that
    era, there was no Electoral Count Act, and Congress did not
    know how to resolve a dispute between the chambers which was
    going to arise. This was their tie breaking mechanism, to
    create this Commission.
        At the end of the day, the Commission actually said and
    actually concluded by an 8-7 vote 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. After that, Congress enacted the Electoral Count
    Act and has abided by it every four years. On January 3rd, with
    unanimous consent, a concurring resolution from Congress said,
    we are going to abide by these procedures.
        In my judgment, that is the much more sensible approach
    since 1876 was not the best approach, and it was the approach
    that should have guided what Congress was doing on January 6,
    2021.
        Senator Cruz. Well, and I agree that the 1876 election was
    the predicate and in many ways the impetus for the Electoral
    Count Act in attempting to codify a process for dealing with
    disputed elections. I continue to believe it would have been a
    better approach for Congress in the 2020 election to have
    followed the precedent from 1876 and to have appointed an
    Election Commission.
        There are a large percentage of Americans who still have
    deep doubts about the veracity of the election, and I think it
    would behoove both parties to have a serious, substantive
    examination on the merits of the facts of those claims.
        Congress did not go down that role, and one of the
    consequences of that now is we continue to have deep divisions
    in this country.
        Chairwoman Klobuchar. Okay. Thank you, Senator Cruz. Thank
    you for allowing Senator Padilla to go first. I am not a big
    fan of the 1876 election. I would not have been able to vote
    for one thing, and I think----
        Senator Cruz. I am going to be pretty sure you were not
    alive then.
        Chairwoman Klobuchar. That is true, but I am just trying to
    put it in, you know, some, a bit of perspective. I am going to
    fast forward to the present and just ask Senator King his final
    questions. This has been an incredibly productive hearing and
    thoughtful hearing, and good questions on everyone's part.
        Mr. Gore, some experts have argued that because a
    bipartisan bill describes the Governors' certification of
    electoral votes as conclusive, a court could not review
    evidence that the Governor's certification was incorrect in
    order a revision.
        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?
        Mr. Gore. Yes.
        Chairwoman Klobuchar. Okay. You want to say anything more?
        Mr. Gore. I am happy to elaborate on that, Senator. Those
    mechanisms already do exist, as I have mentioned before, for
    state courts and Federal courts to conduct judicial review of a
    Governor's action or inaction with respect to a certificate.
    The Reform Act modernizes that practice by creating the
    expedited federal judicial review provision and also clarifying
    that Congress will accept a revised certificate issued under
    the order of a state or Federal court.
        Chairwoman Klobuchar. Okay. Thank you. Mr. Bauer, do you
    agree with that?
        Mr. Bauer. Yes, I do.
        Chairwoman Klobuchar. Okay. Ambassador, you have expressed
    concerns that mandatory appeal of election related claims from
    a three judge panel directly to the Supreme Court could force
    the court to decide cases that it would just otherwise not take
    up. Can you elaborate on why you think that mandatory Supreme
    Court review could be problematic?
        Mr. Eisen. Reasonable minds can disagree on----
        Chairwoman Klobuchar. As you have seen on this Committee.
        Mr. Eisen. I wish every American could see both what goes
    on this Committee and the bipartisan start that we have here.
    Now it is up to the Committee in a bipartisan way to move it
    forward. I think reasonable minds can disagree on the mandatory
    requirement for appeal. I know some feel very strongly about
    this.
        The case for mandatory appeal includes having the closure
    of the Supreme Court resolving things, not letting it linger on
    the docket. Those who feel otherwise believe that there is an
    adequate judicial review mechanism here. As is typically the
    case with the Supreme Court, it is for them to decide whether
    to grant cert or not.
        I think this is one, as we work through all of the
    necessary and kind of boil down to what we have to have to feel
    really good about the bipartisan compromise, this is one where
    folks see it both ways, Senator.
        Chairwoman Klobuchar. Okay. Mr. Muller, you have said in
    most cases related to presidential elections, whether or not
    the Supreme Court has discretion to hear a case would not
    impact whether it ultimately rules in cases that have merit.
    Can you elaborate on why you think that?
        Mr. Muller. Sure. The sort of mandatory appeals is a little
    confusing, right. First off, the party has to appeal, the
    aggrieved party has to appeal to the Supreme Court.
        Then from a three judge panel, which already happens in
    some campaign finance cases and redistricting cases, the
    Supreme Court cannot refuse to adjudicate the case on the
    merits if it has jurisdiction, but it can summarily affirm,
    which it does, it does not have to give reasons, just summarily
    affirms what happens below.
        That functions very much like the court refusing to grant
    certiorari, just denying certiorari. Or if it says that if
    there is something wrong, they are going to grant certiorari
    just as what they would grant and hear the appeal that comes
    from a three judge panel.
        I think at the end of the day, as a practical matter, there
    is very little difference in how the Supreme Court is going to
    handle these matters regardless of the mechanism.
        Chairwoman Klobuchar. Mrs. Nelson, we have heard some
    concern that the process for assigning judges to three judge
    panels, you have mentioned this, which is usually done by a
    Chief Judge for the Circuit Court, where the courts sits might
    lead 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?
        Mrs. Nelson. Yes. The emphasis is really on the perception
    and the fact that these controversies are highly fraught, and
    to ensure that there is public confidence in the outcome of the
    results. A random selection would eliminate any sense that
    there has been a finger placed on the scale in favor of one
    party or the other.
        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 are dealing with such a consequential electoral
    dispute.
        Chairwoman Klobuchar. Okay. Thanks. Mr. Gore, you want to
    respond at all?
        Mr. Gore. I would just note that with respect to the
    appointment of three judge courts for redistricting cases, that
    is already handled by the Chief Judge of the Circuit Court, and
    there has been no implication that that is done in a way that
    is unfair or biased. I think the existing mechanism is
    sufficient for these cases as well.
        Chairwoman Klobuchar. Okay. Anyone else want to chime in?
    Mr. Eisen.
        Mr. Eisen. Given the extraordinary stakes, perhaps not
    everyone on the panel has an equally happy reaction to recent
    redistricting jurisprudence.
        Chairwoman Klobuchar. Okay. All right.
        Mr. Muller. I want to add briefly, there can be some
    flexibility that might be beneficial if a judge from Alaska is
    randomly assigned the case happening in Phoenix in a very short
    span. If it is not a hearing on Zoom, there can be some
    logistical problems that the Chief Judge could have the
    flexibility to resolve in such cases. But again, technical
    issue to think about.
        Chairwoman Klobuchar. Okay. Well, I think that is a good
    way to end because people are being very practical, which I
    appreciate. We have had witnesses that come from different
    political perspectives, just like this Committee has come
    together on a number of issues and just like the bipartisan
    group has.
        I want to, first of all, thank my friend, Senator Blunt and
    the Members of the Committee for an incredibly productive
    hearing. I also want to thank Senators Collins and Manchin for
    their work in bringing a group together. I want to thank
    Senator King, who has been out front on this issue from the
    very beginning, and the two of us worked together on it, and
    his expertise on this. I do not think we would be where we are
    without him. I want to thank Senators Warner and Capito as part
    of the group as well.
        We have heard today about the ambiguous provisions in that
    old 1887 law that were actually exploited. I mean, you can use
    more dramatic words, but exploited in the last election and
    underscore the need to update this antiquated law.
        I also think it is just a recipe for future problems as
    people have now contemplated how they could mess around with it
    in various ways, including just kind of practical delays,
    objecting to multiple states. I do not think I am telling
    anyone a secret. They could go on and on and Senator Blunt and
    I before the insurrection contemplated in the range of 24 hours
    but it could even go longer.
        If any of those Senators just kind of, you know, gets sick
    or something and cannot be there--you start having all kinds of
    issues come up. That is why I think that practically looking at
    it, no matter where you come from politically, there needs to
    be changes. We heard bipartisan agreement that we need to
    reform the Electoral Count Act to secure the peaceful transfer
    of power.
        We have talked today about the role of the Vice President,
    which cannot be used to overturn the will of the people. We
    have talked about how you can certify a slate and make sure it
    is the actual electors and not something that is added
    fraudulently at the end.
        We have talked about this appeals process and how we can
    get that set so that makes sense. I appreciate, again, this
    work on this bill to provide much needed clarity to the
    Electoral Count Act.
        I would just add with Mrs. Nelson there in the distance on
    the screen, just that there are a number of us that are still
    devoted to putting some sensible federal rules into place to
    make it easier for people to vote, because that is what we
    should be doing in a democracy. That is what the Freedom to
    Vote Act is about.
        Senator Blunt, do you want to say a few words here at the
    end?
        Senator Blunt. Well, thank you, Chair. I do think we need
    to move forward with the clarifications that are so obviously
    needed, and I think uniformly accepted here. Certainly the
    suggestions today about technical corrections and other
    suggestions are going to be helpful in that.
        But this is clearly something that we should not let carry
    over into another election cycle and get this done this year. I
    look forward to working with you and the rest of the Committee
    to markup a bill and get it to the floor and get it passed.
        Chairwoman Klobuchar. Okay, Senator King? No. Very good.
    All right. That is it. The hearing record will remain open for
    one week because we are speedy, and we are adjourned. It could
    not have gone better. Thank you, everyone.
        [Whereupon, at 12:34 p.m., the hearing was adjourned.]

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