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Congress wants to change how presidential elections are certified. What to know right now

After the Jan. 6 insurrection, lawmakers on both sides of the aisle are looking to reform the 135-year-old Electoral Count Act.

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Dan Avery
6 min read
January 6 insurrection Capitol

Supporters of President Donald Trump stormed the US Capitol on Jan. 6, 2021, to protest the ratification of President-elect Joe Biden's Electoral College victory.

Samuel Corum/Getty Images

An effort to reform how Congress certifies presidential elections has received rare bipartisan backing in the Senate.

Speaking with CNN's Jake Tapper on Sunday, Democrat Sen. Joe Manchin and Republican Sen. Lisa Murkowski both signaled support for changing the 135-year-old Electoral Count Act of 1887, which allows members of Congress to object to election results.

Critics of the antiquated measure say it helped fuel the Capitol insurrection on Jan. 6 last year, when rioters attempted to stop lawmakers from formalizing President-elect Joe Biden's Electoral College victory in the 2020 presidential election.

Manchin, who opposed Democrats' recent expansive voting rights bill and efforts to defang the Senate filibuster, told Tapper on Sunday an Electoral Count Act reform bill will "absolutely" pass.

"Now, there will be some people saying it's not enough," Manchin added. "There will be some people saying it's more than what we should do or we don't need it. And what we'll do is try to bring them all together and say, 'Listen, this is what we should do because this is what caused the problem.'" 

Here's how the Electoral Count Act came into being, how lawmakers in both parties want to revise it, and whether or not it will impact voting expansion efforts in America.

For more, find out where the battle for voting rights has moved, how voting by mail works in all 50 states, and who are Biden's top picks for Supreme Court Justice.

The Electoral Count Act of 1887, explained

The contentious presidential election of 1876 saw the highest voter turnout by percentage of eligible voters in American history, but also rampant accusations of electoral fraud and voter intimidation aimed at Black Americans supporting Republican candidate Rutherford B. Hayes.

Congress spent weeks trying to certify election results. To break the deadlock, lawmakers hammered out the Compromise of 1877, where Democrats conceded the election to Hayes in exchange for the last federal troops being withdrawn from the South following the Civil War. 

Election of Rutherford B. Hayes

The final vote declared Rutherford B. Hayes the new president by one electoral vote on March 2, 1876.

Bettmann

The move ended Reconstruction and paved the way for the Jim Crow era.

Following the compromise -- and other close elections in 1880 and 1884 -- Congress passed the Electoral Count Act in 1887, establishing a legal framework for casting and counting electoral votes.

Most of the responsibility for resolving electoral disputes was put in the hands of the states. Congress was relegated to essentially recounting and rubber-stamping state results, except under a narrow set of circumstances. 

While the vice president is technically responsible for certifying the count, it has long been considered to be a ceremonial responsibility. 

Why reform the Electoral Count Act?

According to the nonprofit Campaign Legal Center, the ECA "is rife with gaps and ambiguities that make it confusing."

Among the center's concerns is that the current law makes it too easy for an individual member of Congress to throw out a state's election results -- and for states to choose Electoral College members after Election Day. 

In addition, "the ECA does not have a clear and concise process for resolving disputes if Congress deadlocks when it meets every four years to tally the electoral votes," according to the CLC website.   

The Electoral Count Modernization Act, explained

On Feb. 1, Senate Democrats, including Sen. Amy Klobuchar, chair of the Committee on Rules and Administration, unveiled what they called a "discussion draft" of the Electoral Count Modernization Act, which would address "the threats to our democracy since the 2020 presidential election."

"Experts across the political spectrum agree that the Electoral Count Act of 1887 needs to be updated to reflect the current realities and threats facing the United States and our election process," Klobuchar said in a statement with co-sponsors Sen. Angus King, an independent from Maine, and Senate Majority Whip Dick Durbin.

Capitol protest

The Jan. 6 insurrection spurred lawmakers to draft legislation addressing "threats facing the United States and our election process."

Win McNamee/Getty Images

According to the bill's sponsors, "This legislation seeks to establish clear, consistent, and fair procedures for the counting and certification of electoral votes for the presidency." They referred to the bill in its current state "as a foundational outline for key reforms that address the shortcomings of the 1887 law."

Among other things, it would spell out the specific limited grounds lawmakers could use to object to electors or electoral votes. It would also clarify that the vice president's role in validating elections is purely ceremonial and he or she does not have the power to reject state electors.

The bill would also require a third of lawmakers in both chambers to back an objection before it was voted on. (Currently, a vote can be triggered by a single lawmaker in each chamber.)

It also increases the threshold for upholding an objection from a simple majority in both chambers to a three-fifths majority in both chambers.

And it bars state legislatures from appointing electors afterElection Day in hopes of overturning election results. States would have until Dec. 20 to conclude any legitimate ballot recounts or lawsuits.    

The 'Goldilocks' approach to Electoral College reform

Manchin is heading up a separate bipartisan effort to update the ECA with Sen. Susan Collins, a Republican from Maine.

They have not formally sponsored a bill yet, but did meet with 16 Senate colleagues on Jan. 31, The Hill reported. While the two efforts have been working largely independently, Collins said she also met with Klobuchar and Sen. Roy Blunt, the top GOP member of the Rules Committee.
It's possible the two bills could be combined.

Lisa Murkowski

Republican Sen. Lisa Murkowski is part of a bipartisan group looking to reform how presidential elections are certified. 

Drew Angerer/Getty Images

Murkowski told CNN the bipartisan group is going to "take the Goldilocks approach," finding common ground on reform.

"And it's not going to be just right for everybody," she added. "But will it be a step ahead? Will it be important for the country? Yeah."

King, Durbin and Klobuchar said they "stand ready to share the knowledge we have accumulated with our colleagues from both parties, and look forward to contributing to a strong, bipartisan effort aimed at resolving this issue and strengthening our democracy."

Unlike the Democrats' voting rights act, which was opposed by all 50 Republican senators, updating the Electoral Count Act has received backing from both parties -- and Collins and Murkowski are involved in the bipartisan working group. 

The existing law "obviously has some flaws," Senate Minority Leader Mitch McConnell said in January. "And it is worth discussing." 

The Trump factor

In January, former President Donald Trump issued a statement chastising former Vice President Mike Pence for not overturning the 2020 presidential election results.

"If the Vice President had 'absolutely no right' to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?" Trump said.

Trump impeachment

Trump repeatedly called for the results of the 2020 presidential election to be overturned by then-Vice President Mike Pence.

James Martin/CNET

By sponsoring the Electoral Count Modernization Act, he theorized, Democrats were acknowledging that "Mike Pence did have the right to change the outcome, and they now want to take that right away."

On Friday, Pence said his former running mate was "wrong."  

"Under the Constitution, I had no right to change the outcome of our election, and Kamala Harris will have no right to overturn the election when we beat them in 2024," he told members of the Federalist Society in Orlando.

The impact on voting rights

The proposed legislation could bolster the election confirmation process against another attempted insurrection. But it doesn't address the meat of the failed Freedom to Vote Act, which would have expanded voting eligibility, banned partisan gerrymandering and combated voter suppression.

That measure was successfully blocked by Senate Republicans last month.

"The Electoral Count Act needs to change, but It's not even close enough to what we need to protect our democracy," Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at NYU's Brennan Center for Justice, told CNET. "It's just one point of many."
 
In their joint statement, Klobuchar, King and Durbin acknowledged "that updating the Electoral Count Act is not a substitute for confronting the wider crises facing our democracy."
"We continue to support legislation to protect voting rights prior to Election Day," they said, "and strongly believe that we must clarify ambiguities in the electoral process after Election Day to truly ensure the will of the voters will prevail."