[Congressional Record Volume 168, Number 121 (Thursday, July 21, 2022)]
[Senate]
[Pages S3600-S3602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ELECTORAL COUNT ACT WORKING GROUP
Mr. CARDIN. Madam President, for the past 6 months, I have been
pleased to work with a bipartisan working group of about a dozen
Senators for potential reforms of the Electoral Count Act and some
related matters. I particularly want to thank our leaders of that
bipartisan group, Senators Collins and Manchin, for organizing the
group, keeping us focused on getting results, and leading to a process
that has resulted in a positive outcome.
This week, we are unveiling our proposed legislation. Our
legislation, the Electoral Count Reform and Presidential Transition
Improvement Act of 2022 will reform and modernize the badly outdated
1887 ECA. In 1887, the Electoral Count Act was passed. It is in bad
need of reform.
On July 18, 2022, the Wall Street Journal ran an editorial authored
by former President Jimmy Carter and former Secretary of State Jim
Baker, who had previously served as Chief of Staff for President
Reagan. In this editorial they wrote:
We stand on opposite sides of the partisan divide, but we
believe it is better to search for solutions together than to
remain divided. This is particularly true of a vexing problem
that could wreak havoc during the 2024 presidential election:
the inadequacy of the Electoral Count Act of 1887.
The act is an antiquated, muddled and potentially
unconstitutional law that allows uncertainty during a
critical step in the peaceful transfer of power. . . .
Weaknesses in the law started to become apparent after the
2000 election.
The editorial continues:
In 2021, the ambiguities of that law helped lead to the
violent assault on the U.S. Capitol as efforts were being
made to toss out several states' slates of electoral votes.
Fortunately, those efforts failed, and the rightful winners
took office. But the threat of confusion remains. Left
unclosed, loopholes in the act could allow a repeat of the
same destructive path that occurred in 2021.
The Washington Post has written several editorials on this subject as
well. The June 19, 2022, editorial in the Post entitled ``Fix the
electoral count law now, before Trump tries to exploit it again''
reviewed the recent House committee hearings on the January 6
insurrection. The editorial wrote:
The House committee investigating the Jan. 6, 2021, Capitol
attack heard damning testimony detailing how President Donald
Trump and a coterie of partisan lawyers advanced a dangerous
argument: that the vice president has the legal authority to
overturn a presidential election when Congress meets to count
electoral college votes. Trump official after Trump official
testified that they knew it was wrong. John Eastman, a
lawyer who advocated for the theory, acknowledged as much
in front of Mr. Trump on January 4, according to testimony
from Greg Jacob, who was Vice President Mike Pence's
general counsel. But Mr. Trump and his allies nevertheless
waged a relentless public campaign to pressure Mr. Pence
to betray the Nation's democracy. Belief in this
antidemocratic nonsense spurred the January 6 mob, which
infamously chanted, ``Hang Mike Pence.''
The Post editorial continued:
Americans went most of their history without having to
worry seriously about arcane electoral college procedures.
Even in closely fought, acrimonious presidential elections,
losing candidates accepted their defeats with grace rather
than seeking the vulnerabilities in the law to exploit. The
country no longer has that luxury. Congress should have no
higher priority than fixing the electoral college process.
The recommendations that are coming out of this bipartisan group
would do just that--fix the Electoral Count Act.
I want to thank the work of the American Law Institute, which
convened a bipartisan working group to consider possible ECA reforms.
In particular, I want to thank cochairs Bob Bauer and Jack Goldsmith
for their contributions to our efforts. I also want to thank the staff
at Protect Democracy for their suggestions and work here.
Our legislation aims to ensure that Congress can accurately and
correctly tally the electoral votes cast by the States, which should be
consistent with each State's popular vote for President and Vice
President of the United States. Our legislation clarifies some of the
ambiguities in terms of the appropriate State and Federal roles in
selecting the next President and Vice President of the United States as
set forth in the U.S. Constitution.
In our constitutional system, election law, like many other areas of
law, involves shared powers between the Federal Government on the one
hand and State and local governments on the other. Article I, section 4
of the Constitution provides:
The Times, Places, and Manner of holding elections for
Senators and Representatives, shall be prescribed in each
State by the Legislature thereof.
That clause of the Constitution continues by concluding:
But the Congress may at any time [by law] make or alter
such Regulations.
We have the power here, and that is what the Electoral Count Act is
about.
Article II, section 1 of the Constitution provides:
Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may
be entitled in the Congress.
The Constitution also provides:
The Congress may determine the Time of choosing of the
Electors, and the Day on which they shall give their Votes;
which Day shall be the same throughout the United States.
The 12th Amendment to the Constitution, ratified in 1804, sets out a
framework for Congress to tally and count the electoral votes from the
States. Congress later passed the Electoral Count Act, the ECA, in
1887, in the aftermath of a contested Hayes-Tilden Presidential
election of 1876 in which States sent competing slates of electors to
Congress.
Our legislation takes several key steps to modernize the ECA and
reduce the opportunity for constitutional mischief when it comes to
Congress properly counting the electoral votes of the States.
First, the legislation helps to make it easier for Congress to
identify a single, conclusive slate of electors from each State. The
legislation requires each State's Governor as responsible for
submitting the certificate of ascertainment identifying that State's
electors. A State may designate another individual besides the Governor
to carry out this function, such as the Secretary of State, if such an
individual is named before the election day itself.
Again, the State executive official reporting their electoral votes
to Congress must do such ``under and in pursuance of the laws of such
State providing for such ascertainment enacted prior to election day.''
Our legislation, therefore, seeks to avoid circumstances in which a
State attempts to change the rules after election day due to political
pressure that may arise if a particular favored candidate loses the
election.
Congress could not accept a slate of electors from an official not
authorized to do so by State law enacted prior to election day. Our
legislation provides that States following these rules will have their
appointments of electors treated as conclusive by Congress subject to
any subsequent State or Federal judicial relief granted prior to the
date of the meeting of electors.
Our legislation states that the determination of the Federal courts
shall be conclusive on questions arising under the Constitution or laws
of the United States.
Second, the legislation modernizes the ``failed election'' language
in the ECA to specify that a State could modify its period of voting on
election day only as necessitated by ``extraordinary
[[Page S3601]]
and catastrophic'' events ``as provided under the laws of the State
enacted prior to [the election day].''
This provision makes it clear, if a State legislature tries to
override the popular vote in their State, that that would not be
allowed.
Third, the legislation provides for the expedited judicial review of
certain claims relating to a State's certificate identifying its
electors. We have limited this special judicial review in our
legislation to only be available to the aggrieved Presidential
candidates. This special procedure allows for challenges made under
Federal law and the U.S. Constitution to be resolved more efficiently
by using a special three-judge panel with a direct and timely appeal to
the U.S. Supreme Court.
Fourth, the legislation makes clear that the Vice President has a
purely ministerial role in the joint session of Congress to count the
States' electoral votes. In particular, our legislation states that the
Vice President does not have the power to solely determine, accept,
reject, or otherwise adjudicate disputes over electors. That
specifically includes objections over the proper list of electors, the
validity of electors, or the votes of the electors.
President Trump pressured the Vice President to use this illegal
method in order to overturn the 2020 election results. Ultimately, this
effort was rejected by Vice President Pence, in his capacity as
President of the Senate, as he presided over the January 6, 2021, joint
session.
Fifth, our legislation increases the threshold needed to lodge an
objection to electors from one Senator and one Representative to one-
fifth of the duly chosen and sworn Members of both the House and the
Senate. Similarly, article I, section 5 of the Constitution provides
``the Yeas and Nays of the Members of either House on any question
shall, at the Desire of one fifth of those present, be entered on the
Journal.''
This will reduce the risk and likelihood of frivolous objections
being lodged, which requires a lengthy debate and vote in the separate
Houses. The House has to vote separately; the Senate has to vote
separately; and it takes a lot of time. For example, on January 6,
2021, the Senate voted to reject, by a vote of 6 to 93, the objection
against the electors of Arizona and voted 7 to 92 on the objections
raised as to the electors from Pennsylvania.
Sixth, our legislation clarifies that, if electors are not lawfully
appointed or if an objection is sustained by Congress rejecting
electors as not lawfully appointed, those electors would not be
included in the denominator for determining the majority of the whole
number of electors appointed.
That means we can reach a decision on the day that we count the
votes.
The main focus of our work over the past 6 months has been on this
sorely needed reform in the ECA, but our working group came up with a
number of bipartisan reforms on some other matters related to
elections.
The Presidential Transition Improvement Act would help promote the
orderly transfer of power between Presidential administrations. As we
saw in 2020, the failure of a timely ascertainment of the winner by the
Administrator of the U.S. General Services Administration and the
uncooperative attitude of the Trump administration led to a delay in
providing transition resources to the incoming Biden administration.
This legislation provides clearer guidelines for eligible candidates
for President and Vice President to receive Federal resources to
support their transitions, including allowing more than one candidate
to receive these resources during the time period when the outcome of
an election is in reasonable doubt.
The Postal Service Election Improvement Act seeks to improve the
handling of mail-in ballots by the U.S. Postal Service and provides
guidance and best practices to the States to improve their mail-in
ballot processes if State law allows.
The Election Assistance Commission Reauthorization Act would
reauthorize the Election Assistance Commission for 5 years. The EAC
administers grants to States and develops nonbinding guidance and best
practices for election officials in various areas, including cyber
security, election audits, and voting accessibility.
What this legislation does not include is any substantive provision
to strengthen voting rights in this country, which is desperately
needed, and I am sorely disappointed by that omission. Our Nation has a
long history of bipartisan work on voting rights issues. I repeatedly
raised voting rights issues with our larger group as well as with our
smaller subgroup on voting practices.
Let me take a moment to remind my colleagues of our voting rights
history.
The Voting Rights Act of 1965 was approved by a broad bipartisan vote
of 328 to 74 in the House and by a vote of 79 to 18 in the Senate, and
Congress had a long bipartisan track record of clarifying its intent in
response to restrictive Supreme Court decisions--that is, until
recently.
In 1982, Congress amended section 2 of the Voting Rights Act after
the Mobile v. Bolden decision in which the Supreme Court interpreted
section 2 as prohibiting only purposeful discrimination. That was very
restrictive, making the Voting Rights Act much less effective. Congress
responded to that decision by clarifying that section 2 explicitly bans
any voting practice that had a discriminatory result irrespective of
whether the practice was enacted or operated for a discriminatory
purpose. The 1982 amendments--these are the amendments that corrected
the Supreme Court's restricted decision--passed the House by a vote of
389 to 24 and the Senate by a vote of 85 to 8. They were signed into
law by President Reagan, a bipartisan action.
Over 20 years later, Congress acted to address two Supreme Court
rulings to clarify congressional intent regarding section 5 of the
Voting Rights Act. This reauthorization passed 390 to 33 in the House
and 98 to 0 in the Senate. It was signed into law by President George
W. Bush--again, a bipartisan action.
So, after the Supreme Court's decision in Shelby County v. Holder in
2013 and after Brnovich in 2021, Congress should have acted to clarify
the intent of the Voting Rights Act, but it didn't, and now we are
faced today with totally unnecessary partisan gridlock on voting
rights. We saw this gridlock play out this January when the Senate
refused to even take up and debate the Freedom to Vote: John R. Lewis
Act.
Let me mention one section of the VRA in particular. Section 2 of the
Voting Rights Act protects against discriminatory voting laws. It
prohibits any jurisdiction from implementing a ``voting qualification
or prerequisite to voting, or standard, practice, or procedure . . . in
a manner which results in a denial or abridgement of the right . . . to
vote on account of race,'' color, or language minority status.
For nearly 40 years, case law has interpreted section 2 to combat
racial discrimination without partisan favor. Prior to the Brnovich
case, the Supreme Court and several circuit courts had adopted a
standard to ensure the effective implementation of these provisions
consistent with the text and purpose of the Act as amended in 1982.
The Brnovich decision deviated from congressional intent behind
section 2. The Court adopted an unduly narrow reading of section 2 and
went beyond the statutory interpretation by courts for decades by
outlining five new guideposts. The decision is not tethered to the
statutory text and is inconsistent with the statute's purpose and
historical usage.
It wasn't the first time the Court narrowed our law, but in previous
efforts, we came together, Democrats and Republicans, to make sure that
the Voting Rights Act was effective. So I am disappointed that we could
not make progress in our working group to address the needed fix to
section 2.
We should have also looked at the issue of the right of private
action. Since the Voting Rights Act's enactment in 1965, Congress has
intended that voters be able to sue directly to enforce the Voting
Rights Act rather than depend entirely upon the U.S. Department of
Justice, which has finite resources to protect voting rights.
I want to thank my colleague Senator Murkowski for consistently
raising this issue.
The Voting Rights Act's private right of action is settled law as
Congress has repeatedly noted in its Voting Rights Act's amendments.
Even though the private right of action is clear and settled law, our
group should have removed any ambiguity about its intent by proposing
language making it more explicit the statute's existing right for
private action. Just
[[Page S3602]]
as we resolved ambiguities in the ECA and its potential
misinterpretation, we should have done the same with this critical
right of private action under the Voting Rights Act--a missed
opportunity.
As a recent report from the Brennan Center points out, State
legislatures have been working to make it harder to vote after the 2020
elections, even after witnessing record turnout during the pandemic.
The Brennan Center wrote that in 2022:
[S]tate lawmakers, who spent 2021 passing laws that made it
harder to vote, have focused more intently on election
interference, passing nine laws that could lead to tampering
with how elections are run and how results are determined.
Election interference laws do two primary things. They open
the door to partisan interference in elections, or they
threaten the people and processes that make elections work.
In many cases, these efforts are being justified as measures
to combat baseless claims of widespread voter fraud and a
stolen 2020 election.
The Brennan Center noted that in many of these same State
legislatures, lawmakers have continued to introduce or enact laws that
restrict access to the vote. Legislation is categorized as restrictive
if it would make it harder for eligible Americans to register, stay on
the rolls, and/or to vote as compared to existing State law.
Free and fair elections are fundamental to who we are as a nation.
For this reason, I strongly support the bipartisan working group's
proposal to reform and modernize the ECA. As we saw in the 2020
elections, different interpretations of the Electoral Count Act can
lead down a dangerous path to another January 6-style insurrection,
when former President Donald Trump and his enablers attempted to
overturn a free and fair election won by President Joe Biden.
Congress's work will not be complete when we pass this bipartisan
proposal. We still must take up and pass voting rights legislation in
order to safeguard the right to vote, which should be a right
guaranteed to all Americans, regardless of their race, wealth, or
social status.
I yield the floor.
The PRESIDING OFFICER (Mr. Hickenlooper). The Senator from Maryland.
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