Congress considers update to election confirmation rules

A poll conducted in July found that as few as 16 percent of Americans were “very confident” that elections reflected the public’s wishes—a marked decline from 36 percent of those polled in January 2021. Another survey in December 2021 found that only 20 percent of Americans held a high level of confidence in the “integrity of the U.S. electoral system overall.” Yet another poll showed that 64 percent of Americans believed democracy in the United States was “in crisis and at risk of failing”—a sentiment held by two-thirds of Democrats and 79 percent of Republican respondents.

The numbers strongly suggest voters aren’t as sure about the election process as they used to be. And Congress has noticed.

As the country approaches next month’s midterm elections, the U.S. House and Senate have introduced separate bills designed to acknowledge and confront the issue—at least in part—by responding to the U.S. Capitol riot that took place on Jan. 6, 2021, as Congress met to certify the 2020 presidential election results.

The Electoral Count Act attempts to assure Americans of the integrity of the democratic process during a presidential election while also subtly rejecting the notion that a sitting vice president can vacate its results.

In the twilight of the 2020 election, then–President Donald Trump called on his vice president, Mike Pence, to use his constitutional responsibility of formally counting the electoral votes as a way to halt results that Trump contended were fraudulent. Pence refused.

If this new Electoral Count Act passes, it would prevent a vice president from even being in a position to consider changing an electoral count, shielding future occupants of that office from similar external pressures.

The two bills under consideration would update the previous Electoral Count Act, the current 135-year-old  law that sets parameters for how presidential elections are confirmed. Both bills clarify the role of the vice president, raise the threshold for officially challenging an election’s results in Congress, and prevent states from retroactively changing an election’s results through a new or modified law.

The House version passed in September, largely along party lines with a 229–203 tally. Only nine Republicans supported the bill, eight of whom voted against Trump during his impeachment trial in January 2021. All nine are leaving Congress at the end of this term either by choice or because, like Rep. Liz Cheney of Wyoming, another Republican defeated them in the primaries. Despite previously stating he might support updating the process of counting electoral votes, House Minority Leader Kevin McCarthy of California voted against the Electoral Count Act.

The Senate version of the bill has garnered more GOP support than its counterpart in the House. And that support starts with Senate Minority Leader Mitch McConnell of Kentucky.

“Congress’ process for counting electoral votes was written 135 years ago,” he said on the mostly empty Senate floor last month. “The chaos that came to a head on Jan. 6 of last year certainly underscores the need for an update.”

McConnell has mostly supported former President Donald Trump. Last year, he went as far as to say he would “absolutely” back the former president in a 2024 campaign. But McConnell’s support for the Electoral Count Act signals a key difference of opinion with the former president on what was and wasn’t possible on Jan. 6, 2021.

Every member of the Senate Rules Committee backs the bill with the notable exception of Sen. Ted Cruz. The Texas Republican called it “exceptionally bad policy.” He suggested the bill’s requirements on restricting changes to state elections are unconstitutional.

To bring the bill to a vote in the Senate, Democrats would need 60 yes votes, which would include an additional 10 Republican votes to supplement their base of 50. With the urging of McConnell, Republicans are likely to lend the needed support.

The Senate bill came about after months of negotiations between Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va. There are subtle differences between the Senate and House versions, with the Senate bill making slightly more modest changes to the existing rules. One proposed change suggests that one-fifth of each chamber must vote to consider an objection to a state’s electoral votes. The House version has a higher threshold of one-third. Lawmakers in both chambers will have to consolidate the differences into one text before the bill can become law.

The White House has not delivered an opinion on which version of the bill, if either, it would support at this time.