Yesterday, the Senate Rules & Administration Committee held a hearing to discuss reforming the Electoral Count Act, with most of the discussion focused on the draft Electoral Count Reform Act from the bipartisan working group led by Sen. Susan Collins (R‑ME) and Sen. Joe Manchin (D‑WV).



As the committee’s chair Sen. Amy Klobuchar (D‑MN) and ranking member Sen. Roy Blunt (R‑MO) both noted, the hearing was remarkable in its bipartisan agreement on both the importance and the substantive details of ECA reform. In addition to statements from Collins and Manchin, the committee heard from an impressive group of witnesses from across the political spectrum. There was very little disagreement among them, and all of the witnesses agreed with the urgency of passing ECA reform this year, before the 2024 election cycle gets underway.



Most of the discussion focused on technical fixes and improvements to the Collins-Manchin draft, which was also the focus of the statement submitted by Thomas Berry and myself and read into the record by Klobuchar, as well as in our previous writings on the ECRA draft. Cato’s work on this front was also cited by witnesses Norm Eisen, a former ambassador currently at Brookings, and Janai Nelson, president of the NAACP Legal Defense Fund.



With little need to defend the bill as a whole, given the lack of substantive opposition from either the left or the right, attention turned to getting the details right. These points for improvement mostly involve providing tighter definitions of key terms and procedural clarity for the proposal’s mechanics.



As we have recommended and several of the witnesses also suggested, these fixes include a narrower definition for when members of Congress may object to electoral votes as not “regularly given,” and tightening the so-called failed elections provision which covers allowing states to handle “extraordinary and catastrophic” events disrupting Election Day. There are also some concerns about the precise drafting and timeline for the expedited judicial review procedure, intended to handle the risk of rogue actors obstructing certification of electors. On the latter point, one possible fix would involve moving the date of the Electoral College meeting later in the calendar, to provide more time for the courts to resolve disputes.



Aside from fleshing out these details, the only pushback against the big-picture premise of ECA reform came from Sen. Ted Cruz (R‑TX), the only senator participating in the hearing who had voted against counting electoral votes in the 2020 election. As he did then, Cruz revived the idea of using the 1876 Hayes-Tilden election dispute as a model. In particular, Cruz has advocated that Congress should revive the ad hoc “Electoral Commission” used to decide that year’s election. This is an unusual outlier position, to put it mildly.



The 1876 fiasco is generally regarded as the most infamous example of what not to do. It nearly reignited the Civil War, almost failed to resolve the dispute in time for Inauguration Day, and paved the way for Jim Crow under a corrupt bargain to end Reconstruction. More than any other incident, it was this crisis that prompted Congress to realize better procedures must be codified ahead of time in an Electoral Count Act.



As one of the expert witnesses, Derek T. Muller of the University of Iowa, pointed out to Cruz, even the notorious Electoral Commission rejected what Cruz wants from his revived version: a broad power to sit in judgment of how each state conducted its popular election. Far from a conservative or an originalist argument, this position amounts to flagrantly usurping the proper role of the states and the courts, wrecking the Framers’ design for a president independently elected by the Electoral College rather than chosen by Congress. The widespread rejection of Cruz’s position can best be summed up by Klobuchar’s deadpan response: “I’m not a fan of the 1876 election.” Indeed. 



On the topic of constitutional housekeeping, ranking member Blunt also made a noteworthy aside in his opening statement, expressing agreement with longstanding complaints that the Presidential Succession Act (also contained in Title 3, alongside the ECA) should not include congressional leaders. Currently, the speaker of the House and the Senate president pro tempore are next in line after the vice president, a very dubious policy on both constitutional and practical grounds.



It’s not as urgent as fixing the Electoral Count Act, since we have a presidential election every four years but have never faced a scenario where both the president and the vice president are out of commission. But the two laws fit a similar pattern: scholarly warnings have long been ignored by Congress as academic and unimportant. James Madison himself once raised the objection, only to be brushed aside. But as happened with the ECA, one day it could suddenly become very important, threatening the American people with a catastrophic dispute over who is the rightful president. Fixing this flaw in the Presidential Succession Act would be relatively simple and is also worth doing.


But presidential succession is a discussion for another day. As the ECRA draft moves forward, with a committee markup likely in September when Congress returns from recess, yesterday’s hearing shows that reform advocates have every reason to be optimistic.