[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



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                  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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