The text of a 135-year-old law – the Voter Count Act – was just vague enough that former President Donald Trump and his allies in Congress used questionable tactics to try to derail a normally routine process during the 2020 presidential election. Trump’s plan prompted thousands of violent protesters to riot on Capitol Hill.
After the Jan. 6 attack, a bipartisan group of senators introduced a bill to end ambiguities in the 1887 Voter Count Act. The changes have received widespread praise from legal experts. Some senators have also introduced a bill to increase penalties for threats against election officials and improve how the US Postal Service handles mail-in ballots.
These bills primarily target behind-the-scenes election rules that most Americans never think about, said Matthew Weil, executive director of the democracy program at the Bipartisan Policy Center.
“At the highest level, improvements to the voter count law reduce ambiguity in the process that ensures the right candidate is declared the winner,” Weil said. “The counting and certification of votes after Election Day should not be a gray area in law.”
Here’s a guide to what the two bills, the Voter Count Reform Act and the Enhanced Election Security and Protection Act, would do.
Law on the reform of the electoral count
Clarifies and limits the role of the vice-president
Normally, when Congress certifies the Electoral College vote, the clerks unseal the results sent in by each state, the vice president reads the results aloud, and the process continues. Lawmakers have the ability to challenge a state’s results, but Trump has focused on the vice president.
Trump’s hopes for an overhaul hinged on the presumption that the vice president has the power to overturn a given state’s results, if there are reasons to question them.
The proposed bill closes the door to that.
Not only does it say that the vice president’s role is strictly “ministerial” – that is, a glorified announcer – but it specifically lists what the vice president cannot do.
“The President of the Senate (Vice President) has no authority to determine, accept, reject, or otherwise adjudicate or resolve disputes regarding the proper voters list,” states the Count Reform Act electoral.
Close the door to “alternative” electoral lists
Part of Trump’s plan was to send “alternative” voters lists to Congress supporting him, rather than Joe Biden, who had officially won. The plan was to create enough confusion to give Pence an opportunity to dismiss the official results.
The bipartisan proposal largely requires Congress to accept a single list from each state. Once the state sends a fully certified list, the bill says it should be “treated as conclusive.”
And it clarifies how states must certify their electoral votes.
The current law does not specify who at the state level — typically the governor or the secretary of state — has the final say on voter roll certification. In theory, this leaves open the possibility of a governor certifying one list and the secretary of state another.
The bill lets states decide who performs the certification, but once the choice is made, it cannot be changed after the election.
“It avoids scrambling after Election Day to convince other state officials to certify a list that doesn’t represent the voters’ choice — the so-called bogus lists,” said law professor Rebecca Green. at William & Mary. “It also makes it clear that if a group of citizens decides to come together and certify an alternate list, Congress will disregard that effort.”
Closes the ‘failed’ election loophole
A predating law to the Voter Count Act, the Presidential Election Day Act of 1845, not only sets polling day as the Tuesday following the first Monday, but also contains a section on what states must do. if they haven’t “made a choice” about it. daytime.
“Electors may be named on a subsequent day in such manner as the Legislature of this State may direct,” the law says.
The problem is that the law does not define what a “failed” election is.
The new bill states that only “extraordinary and catastrophic” events would be grounds for declaring an election a failure.
Raises the Bar for Congressional Challenges
Currently, it only takes one senator and one representative to challenge the results of any given state. This made it easy for Republicans and Democrats to raise issues in the 2020 election and previous elections.
The bill would raise the threshold to 20 senators and 87 representatives.
“This reduces the likelihood of a small number of Representatives and Senators delaying the count or interfering with the results,” wrote a bipartisan group of prominent legal experts on the Election Law blog.
Enhanced Election Security and Protection Act
Adds penalties for those who threaten election administrators
Election officials have faced heightened threats since the 2020 election, leading some to leave the profession. Colorado County election official Josh Zygielbaum told PolitiFact the threats prompted him to wear a body armor.
The Enhanced Election Security and Protection Act would increase the penalty for threatening election officials, from one to two years in prison.
But the bill fails to address the main concern raised by election officials: those who make threats are rarely prosecuted. A year after the Justice Department launched a task force to investigate hundreds of threats against election officials, prosecutors have charged just three people. One person has been convicted.
Colorado Secretary of State Jena Griswold, the target of threats, told PolitiFact that “while it is certainly important to increase the penalty for threatening or intimidating election officials, these penalties are not relevant if the people who violate the law are not prosecuted”.
Wandrea “Shaye” Moss, a former Georgia election worker who faced threats, testifies as her mother, Ruby Freeman, listens, during a June 21, 2022 hearing of the House Select Committee investigating the attack of January 6 against the US Capitol. (AP)
Improves mail-in ballot processing
The bill enshrines in law a series of requirements for the U.S. Postal Service, with the goal of improving mail-in ballot delivery and increasing the chance that mail-in ballots will be received on time. . Some of the provisions have already been recent Postal Service practice, but the bill would enshrine those practices in law.
“The Postal Service has absolutely improved how it handles voting by mail, but that’s because it’s become an internal priority,” Weil said. “The executive says it’s now a mandate, not a choice.”
The bill requires the Postal Service to dedicate at least one staff member in each state to assist election officials. It also requires postal workers in the final weeks before the election to search postal facilities daily for mail-in ballots and to continue daily searches until the last date the state accepts ballots cast during of this election. Postal service facility managers should certify in a log that every ballot due to leave the facility that day has left.
The bill also requires the U.S. Postal Service to process mail the Sunday before Election Day and work extended hours as needed to deliver mail-in ballots.
And, it requires a postmark on all federal mail-in ballot envelopes because some states set deadlines that those ballots must be postmarked by a certain date to be counted.
In non-federal election years, the Postal Service would provide best practice recommendations to state and local governments regarding the optimal time for voters to request and return mail-in ballots, the design of mail-in ballot envelopes, correspondence and other tips to improve the efficiency of postal voting.
Additional efforts to improve the security of electoral systems
The bill increases penalties for people who steal or alter voter records from $1,000 to $10,000 and one to two years in prison and makes it illegal to tamper with voting systems.
What happens next
Assuming the bills get all 50 Democratic Senate votes, they need 10 Republicans to avoid a filibuster.
So far, nine Republicans support the Voter Count Reform Act. If the bill passes the Senate, passage through the House is virtually guaranteed. Sen. Amy Klobuchar, D-Minn., said the rules committee will hold a hearing in the coming weeks on the bill.
When the Enhanced Election Security and Protection Act was announced on July 20, five Republicans signed it.
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