[Congressional Record Volume 168, Number 121 (Thursday, July 21, 2022)]
[Pages S3600-S3602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  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Improvement Act of 2022 will reform and modernize the badly outdated 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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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.