The Senate Rules Committee will meet later today to conduct a markup on the Electoral Count Reform Act, the bipartisan ECA reform bill from a group of senators led by Susan Collins (R‑ME) and Joe Manchin (D‑WV). This hearing will make several changes to the bill before it goes to the full Senate, all with the support of both the committee’s chair Amy Klobuchar (D‑MN) and ranking member Roy Blunt (R‑MO).
While many of these changes are minor drafting issues and technical fixes, some also address key differences with the Lofgren-Cheney version of ECA reform, passed last week by the House as the Presidential Election Reform Act.
Among these changes is tightening the language for allowing extended voting in presidential elections in case of extreme emergencies. This was one of the main differences with the House bill, which defines such emergencies with much greater specificity. Changing this part of the existing law is seen as important because the current “failed elections” rule is extremely vague. It has been read by some to argue state legislatures could intervene in post-election disputes, possibly even to overturn their state’s election results, rather than as a narrow deadline extension to cover major natural disasters and the like.
To provide some additional limitation in the new rule, today’s amendment inserts the term “force majeure” as an additional qualifier on “extraordinary and catastrophic” events. That tracks with a suggestion Cato colleague Thomas Berry and I discussed in our statement to the Rules Committee analyzing the original ECRA draft:
[The draft ECRA’s change to the failed elections section] is a good step, but the language could be tighter to exclude arguments that allegations of fraud or protracted litigation could qualify as “extraordinary and catastrophic.” One drafting option would be to explicitly invoke the legal concept of force majeure, which is well-defined and provides ample guidance for the courts.
Other changes announced this morning include language to make explicit that the bill’s expedited judicial procedure for handling a “rogue governor” does not displace other avenues for litigation over election-related matters. This is another change in relation to a point that was addressed more clearly in the House bill. Outside of the narrow and time-sensitive scenario of a governor obstructing the Electoral College process itself, cases of voting rights and equal protection lawsuits would continue to be handled through the regular federal court process.
Related to this point, the updated Senate bill also clarifies the intent that a court ruling on who has been properly certified as a state’s electors will be binding on Congress when they gather in joint session to count the electoral votes.
Other edits include waiving a normal waiting period so the expedited judicial procedure can work as intended, changing Supreme Court appeals in that procedure from mandatory to discretionary, and a minor correction to the congressional rules of procedure to make sure the distinction between “electors” and “electoral votes” is correctly followed.
Some differences from the House bill remain. The Senate bill still has a threshold of one-fifth of both chambers to raise objections to electoral votes, as opposed to one-third in the House version. The Senate bill also remains closer to current ECA on defining the permitted grounds for objections, rather than the House’s enumerated list of specific constitutional reasons. Both bills, however, are still a strong improvement over the status quo, and today’s changes further improve the Senate version. The overlap is substantial on most issues, and the differences between them are relatively small compared to how much both would improve the crisis-prone and hopelessly confusing Electoral Count Act of 1887.
The full Senate will now consider the amended Electoral Count Reform Act, with the intent to get the bill through both chambers and to President Biden’s desk by the end of the year.
