Comment | New and improved version of Electoral Counting Law Reform

The compromise proposal Senate negotiators hammered out earlier this year to reform the 1887 Election Counting Act is a good start to prevent a repeat 2020 coup attempt. But the bill It was far awayas Testimony Before highlighting the Senate Rules Committee.

Fortunately, two members of the House Select Committee are investigating on January 6 rebellionrepresentatives. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.) released their own updated version on Monday. Wall Street Journal.

Their proposal makes several key changes to the law, which provides for the certification of electoral votes. For example:

  • Confirms that the Vice President has only a ceremonial role.
  • It states that members of Congress can oppose electoral votes only if they are concerned with “the express constitutional requirements of candidate and voter eligibility and the express requirements of the 12th Amendment for voter turnout.” Interestingly, the proposal clarifies that an objectionable candidate is ineligible under Section 3. 14th Amendment, barred from federal office anyone “who had engaged in rebellion or insurrection against it, or had aided or abetted its enemies.” In other words, it would serve as a tripwire to challenge former President Donald Trump on the grounds that he had fueled an “insurgency.”
  • It raises the threshold for Congress to vote on objections from one lawmaker in each chamber to one-third in each chamber.

The proposal also avoids some confusing language included in the Senate plan regarding state certification. The house version is useful and accurate Explanation Correct procedure:

Governors must send legitimate election results to Congress; If they fail to do that duty, or if another official prevents them from sending legal decisions, presidential candidates can sue in federal court and ensure that the state receives legal certification. These cases occur before Congress counts electoral votes, and in all cases where a candidate has a majority of electoral votes, Congress’s actions on January 6 must ensure that it is purely ministerial.

Foreshadowing a maneuver by Trump lawyer John Eastman, the proposal makes clear that “the rules governing the election cannot be changed after the election has taken place.” In short, the state legislature cannot subvert the will of the electorate.

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In further inspired legislation, the amended ECA will specify that it is a Violation It is unconstitutional to refuse to count and certify votes as per rules in force on election day. A candidate can go to federal court to seek an injunction against state officials who refuse to do so. After that an appeal can be made directly to the Supreme Court. (A treble damages provision was also included in an attempt to prevent frivolous litigation.)

Finally, the proposal clarifies the existing ECA and updates the Senate proposal to provide that the law’s “failed election” provision applies only to “a truly catastrophic event affecting enough votes to change the outcome of state elections.”

Norman Eisen, A Brookings Scholar A person who testified to the Senate Rules Committee on the Senate proposal tells me, “The bipartisan House proposal represents another step toward bicameral agreement.” He approved the House version’s expansion of the period set aside for resolving legal disputes over a state’s election results from six to nine days. It also avoids language included in the Senate version that would have characterized a state’s decisions as “final” by the governor’s certification, reducing “the risk of a rogue governor,” Eisen says.

Bill will do Come to the house floor This week. If it passes (on a close party-line vote) it goes to the Senate. The Senate Rules Committee testified, pointing out flaws in the original Senate proposal, then taking up the House version in a normal process of legislative back-and-forth. In other words, we are moving towards a better version of ECA reform.

We’ll soon find out if there are 10 Republicans who genuinely want to thwart future coup attempts by anti-Democratic candidates and their sleazy lawyers. Jan. 6 Now is the time to create a significant barrier to prevent recurrence. With Democratic majorities in the House and Senate at stake, such reform cannot wait until the midterm elections.

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