On Wednesday, Sens. Joe Manchin, D-W.Va., and Susan Collins, R-Maine, testified before the Senate Rules and Administration Committee about the need to reform the Electoral Count Act. 

What You Need To Know

  • Last month, a bipartisan group of 16 Senators announced a new bill aimed at clearing up the vague language in the Electoral Count Act, or ECA, which first passed in 1887

  • The proposed legislation would remove any questions about the Vice President’s role in counting electoral votes. The bill would make clear that the vice president’s role as congress counts the votes of state electors is merely ceremonial

  • This comes after former President Donald Trump told supporters just before the Jan. 6 riot that then vice President Mike Pence had the power to overturn the results of the 2020 election

  • “The bill that we've introduced, the Electoral Count Reform and Presidential Transition Improvement Act, will help ensure that electoral votes totaled by Congress accurately reflect each state's popular vote for president and vice president,” said Collins in her testimony

Last month, a bipartisan group of 16 Senators announced an agreement on a new bill aimed at clearing up the vague language in the Electoral Count Act, or ECA, which first passed in 1887. 

The Electoral Count Act of 1887 governs the process by which Congress counts electoral votes for President – a process that supporters of former President Donald Trump sought to interrupt during the Jan. 6 insurrection.

As it stands now, only one member of the House and one member of the Senate are needed to challenge any state’s set of electors. In Jan. 2021, House Republicans raised objections about the results in six states, though neither of those objections received a majority of support in either chamber. 

The proposed legislation, led by Sen. Collins and Sen. Manchin, would raise that threshold to a requirement of 20% of the members of each chamber in order to challenge a state’s set of electors. 

Additionally, the proposed legislation would remove any questions about the Vice President’s role in counting electoral votes. The bill would make clear that the vice president’s role as congress counts the votes of state electors is merely ceremonial. 

This comes after former President Donald Trump told supporters just before the Jan. 6 riot that then vice President Mike Pence had the power to overturn the results of the 2020 election. 

“The claim was made that the electoral count act as it exists would allow the Vice President to refuse to accept electoral votes that were lawfully cast,” Sen. Amy Klobuchar, D-Minn., Chairwoman of the Senate Rules and Administration Committee, on Wednesday morning. 

“We know these claims about the Vice President's authority are false. But in the proposals that we have put forward, Senator King and the bipartisan group make it absolutely clear that the Vice President doesn't have this power,” added Klobuchar. 

During the hearing on Wednesday, Former President Trump took to his Truth Social platform to weigh in on the proposed legislation. 

“Senators are meeting right now on reforming the Electoral Count Act so that a Vice President can no longer do what EVERYBODY, except for certain Conservative legal scholars, said was not allowed to be done. So they all lied,” wrote Trump in his post. “The V.P. could have sent fraudulent votes back to State Legislatures!”

Since the 2020 election, countless legal scholars and analysts have acknowledged that the Electoral Count Act has some ambiguities, but as Michael McConell, a law professor and director of the Constitutional Law Center at Stanford University, told the Associated Press, none of the ambiguities could be reasonably interpreted as giving the vice president the power to unilaterally overturn an election’s results. 

In the hearing on Wednesday, Sen. Collins called the 1887 law “archaic and ambiguous” and stated that the Electoral Count Act had been “abused, with frivolous objections being raised by members of both parties,” but Collins explained that “it took the violent breach of the capitol on January 6, to really shine a spotlight on how urgent the need for reform was.”

“The bill that we've introduced, the Electoral Count Reform and Presidential Transition Improvement Act, will help ensure that electoral votes totaled by Congress accurately reflect each state's popular vote for president and vice president,” said Collins in her testimony. 

“We have before us a historic opportunity to modernize and strengthen our certifying and counting the electoral votes for president and vice president,” Collins said. “There is nothing more essential to the orderly transfer of power than clear rules for protecting it. I urge my colleagues in the Senate and the House to seize this opportunity.” 

In his testimony to the Senate Rules and Administration Committee, Senator Manchin of West Virginia called on Congress, “The time to reform the ECA is way past due,” he said. “The time for Congress to act is now.”

Manchin stated that not only is the 1887 law outdated, “but it actually serves as the very mechanism that bad actors have zeroed in on as a way to potentially invalidate presidential elections,” he said.

The Senator from West Virginia acknowledged that he believes the “bill is not perfect” but that it “represents many months of hard work and compromise and would serve as a tremendous improvement over the current ECA.”

“We were all there on Jan. 6. That happened,” Manchin said to the committee. “We have a duty, a responsibility to make sure it never happens again.”

Among the witnesses on Wednesday was Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, John Gore, former Justice Department official during the Trump administration and partner at Jones Day, Retired Ambassador Norman Eisen, Derek Muller, Professor of Law at the University of Iowa College of Law and Janai Nelson, President of the NAACP Legal Defense and Educational Fund. 

All of the witnesses spoke of the importance of reforming the Electoral Count Act. 

Former Trump lawyer John Gore stated that “the Act contains numerous gaps and ambiguities that could impede congress’s ability to count electors accurately in a future presidential election.”

“Reforming the act is necessary and appropriate,” Gore added. “Congress should take the opportunity to safeguard the integrity of our presidential elections now before future disputes arise.”

Bob Bauer of New York University School of Law said that reforming the 1887 act was "urgent," in his written testimony. “We should not risk another presidential election cycle under current law," he said. 

Former United States Ambassador to the Czech Republic, Norman Eisen, that the need for reform is “profound,” telling the committee that  “reforming the ECA is essential to preventing a recurrence of the chaos we saw on January 6, 2021—or worse.” 

Derek Muller, Professor of Law at the University of Iowa College of Law, also drew attention to the importance of enacting the reforms. “The risks of failing to enact the Electoral Count Reform Act of 2022 are significant.,” he said. “Some have attempted to exploit ambiguities over the years, most significantly in 2020.”

“To leave those in place ahead of the 2024 election is to invite serious mischief,” Muller added. 

“Historians will study the period between 2020 and 2025 for decades as they seek to explain the next century of American life,” said Janai Nelson of the NAACP Legal Defense and Educational Fund. “They will ask the question, did we act when we have the chance, or did we squander our last best hope to protect the freedom to vote and save our democracy? The answer to that question lies in part in the actions of this committee.” 

Nelson used her testimony to draw attention to voter discrimination and voter suppression, asking Congress to act, “Long-standing voting discrimination is intensifying at the same time that efforts at election sabotage,” she said. “Congress must act swiftly and explicitly to address the full range.”

During the hearing, the witnesses suggested areas that the committee should focus on improving, such as the federal litigation provision and the need for clear procedural rules for the counting at the joint session. 

Even with bipartisan support, it remains unclear whether the Electoral Count Reform Act will have the 60 votes needed to break a filibuster and pass the senate.