U.S. Senate bills would ban fake electors, clear up Electoral College procedures

Election security legislation would increase penalty for threatening an election official

By: - July 20, 2022 6:58 pm

Douglas County election workers process primary election ballots in Castle Rock on June 28, 2022. (Carl Payne for Colorado Newsline)

WASHINGTON — A bipartisan group of U.S. senators released legislation Wednesday that aims to clarify the 1887 law that governs how Congress counts Electoral College votes following a presidential election. 

The legislation caps off months of negotiations between Republican and Democratic senators, who hope to remove the vagueness from the Electoral Count Act that led former President Donald Trump and some of his advisers to call on then-Vice President Mike Pence to ignore certified votes for Joe Biden from some swing states. 

In the lead up to the certification, Republican officials in several states gathered together to come up with alternate slates of electors, not based on actual votes. 

Those Republicans, some of whom were state officials or state party leaders, then tried to get those “fake electors” to Pence for him to use during the congressional counting process instead of the electors voters had actually chosen.

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A second bill from the group, released alongside that electoral count bill, would enhance federal penalties for people convicted of threatening or intimidating election officials, poll watchers, voters, or candidates.

“From the beginning, our bipartisan group has shared a vision of drafting legislation to fix the flaws of the archaic and ambiguous Electoral Count Act of 1887,” the group of nine Republicans and seven Democratic senators said in a statement

The senators said the legislation they unveiled Wednesday would establish “clear guidelines for our system of certifying and counting electoral votes for President and Vice President.”

The 16 senators include Maryland Democrat Ben Cardin, Maine Republican Susan Collins, Alaska Republican Lisa Murkowski, Ohio Republican ​​Rob Portman, Nebraska Republican Ben Sasse, New Hampshire Democrat Jeanne Shaheen, Arizona Democrat Kyrsten Sinema, North Carolina Republican Thom Tillis, Virginia Democrat Mark Warner and Indiana Republican Todd Young. 

Electoral count act

The Electoral Count Reform and Presidential Transition Improvement Act would place each state’s governor in charge of submitting the certificate of ascertainment identifying that state’s electors, unless the state law or state constitution specified otherwise. 

“Congress could not accept a slate submitted by a different official,” according to a summary of the bill. “This reform would address the potential for multiple state officials to send Congress competing slates.” 

The proposal would clarify the role of the vice president during the counting of electoral college votes, noting that they do “not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”

The number of U.S. lawmakers needed to raise an objection would increase to one-fifth of the members sworn in to the House, which holds 435 members, and the Senate, which holds 100. 

“This change would reduce the likelihood of frivolous objections by ensuring that objections are broadly supported,” according to the bill summary. “Currently, only a single member of both chambers is needed to object to an elector or slate of electors.”

The measure would remove an 1845 law that could allow state legislatures to override the popular vote in their state by declaring a failed election, a term not defined in the law. The bill would instead allow states to move their presidential election date if needed following “extraordinary and catastrophic” events.

Election security

The second bill, dubbed the Enhanced Election Security and Protection Act, would increase the federal penalty for people convicted of threatening or intimidating election officials, poll watchers, voters, or candidates from up to one year in prison to up to two years. 

The measure would clarify that federal law requires election officials to preserve electronic election records. It would make it illegal to tamper with a voting system. And it would increase the penalty for people convicted of willfully stealing, destroying, concealing, mutilating, or altering election records from $1,000 to $10,000 and from up to one year in prison to up to two years.

The second bill is backed by Collins, Murkowski, Portman, Romney and Tillis and all seven Democrats. 

Senate Minority Leader Mitch McConnell, a Kentucky Republican, said Tuesday that he’s been in close contact with Collins while talks were ongoing and that he’s “sympathetic with what she’s trying to achieve.”

“The Electoral Count Act does need to be fixed,” McConnell said. 

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Jennifer Shutt
Jennifer Shutt

Jennifer covers the nation’s capital as a senior reporter for States Newsroom. Her coverage areas include congressional policy, politics and legal challenges with a focus on health care, unemployment, housing and aid to families.

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