GOP Rep. Liz Cheney of Wyoming and Democratic Rep. Zoe Lofgren of California have proposed legislation to make it harder to overturn a certified presidential election in the future by proposing changes to the Electoral Count Act.
They say the recommendations could help prevent an attack on the US Capitol from happening again and argue this legislation is critical, pointing to candidates currently running for offices at the state and federal level who could impact future elections and who believe former President Donald Trump’s election lies. Cheney and Lofgren said this raises concerns of “another effort to steal a presidential election, perhaps with another attempt to corrupt Congress’s proceeding to tally electoral votes.”
The bill Cheney and Lofgren have put forward introduce new laws and strengthen existing ones to prevent individual state officials or members of Congress from subverting election results.
“The Electoral Count Act of 1887 should be amended to prevent other future unlawful efforts to overturn Presidential elections and to ensure future peaceful transfers of Presidential power,” the bill reads.
Cheney and Lofgren also released an op-ed published Sunday in the Wall Street Journal as part of the rollout of their legislation.
“Our proposal is intended to preserve the rule of law for all future presidential elections by ensuring that self-interested politicians cannot steal from the people the guarantee that our government derives its power from the consent of the governed,” Cheney and Lofgren wrote. “We look forward to working with our colleagues in the House and the Senate toward this goal.”
This bill is scheduled to get a vote in the House on Wednesday, and then lawmakers must decide how to reconcile the differences that exist with the Senate’s proposed changes to the Electoral Count Act put forward by a bipartisan group of senators in July.
“We’re not disrupting the compromise,” a House aide told CNN. “We think we are raising the floor for what this bill should look like.”
Raising the threshold for Congress to object to electors
This legislation dramatically increases the threshold needed for members of Congress to object to state electors. The bill would require the support of one third of each chamber to raise an objection and a majority of votes for that objection to be sustained. It outlines five specific and narrow reasons for raising objections. The Senate version of the bill only requires one fifth of support in each chamber and does not restrict reasons for objections.
Currently, only one member from each chamber is required to object and there are no restrictions on the types of objections that can be brought up. That’s why 147 Republicans across both chambers were able to object when Congress met to certify the election on January 6, 2021, and cited various reasons for doing so.
Enforcing states’ vote-counting and certification process
The proposed bill addresses any potential delays a state could make to counting and certifying its votes and creates language to enforce the election certification process.
The legislation says no person “shall willfully fail or refuse to tabulate, count, or report any vote that is timely cast and is otherwise valid under applicable State and Federal law.”
While the House bill gives the states more time to certify an election, known as the safe harbor deadline, it proposes stricter guidelines on how a state’s vote can be challenged.
Only the candidates for president and vice president listed on the ballot can challenge a state’s certification, which would be heard and determined by a district court panel of three judges and reviewable only by the Supreme Court. The legislation outlines a clear calendar for how courts need to expedite any election related challenges. Currently, anyone can make a challenge to a state’s certification in court.
If a governor refuses to certify the election results, and the court orders it must be certified, the bill authorizes another state official to certify the results, thus prohibiting governors from standing in the way of the election certification process.
The new deadline for governors to certify their election and state electors to be chosen is December 14, pushed back from early December, and state electors must meet on December 23, unless the date falls on a weekend. Once state electors certify the election, the slates of electors get sent to Congress.
The legislation also clearly defines what accounts for a state’s slate of electors and clarifies that states can only send one slate. Under the current bill, there is room for a state to send competing slates of electors in certain situations.
This language is meant to address what happened in 2020, where certain states submitted alternate electors for Trump that were not the official electors submitted by states. The fake elector scheme, as it has become known, is currently being investigated by the Department of Justice and has been an thread followed up on by the House select committee investigating the Capitol Hill insurrection.
Clarifying the vice president’s role during Joint Session
The House bill seeks to reaffirm the Constitution and make it clear that the vice president has no authority to reject official state electoral slates, delay the counting of votes or issue any procedural rulings. The Senate bill has a version of this provision as well.
“The 12th Amendment is straightforward; it simply requires counting,” Cheney and Lofgren wrote.
After the 2020 election, Trump tried to get then-Vice President Mike Pence to reject electors from states, which Pence never did.
The legislation proposed by Cheney and Lofgren also establishes parameters for extending election day voting in very limited circumstances, including an act of terrorism or natural disaster, which does not currently exist in the Senate’s proposed bill.