By Norman Eisen
Chairwoman Klobuchar, Ranking Member Blunt, and Members of the Committee:
Thank you for inviting me to testify today on the Electoral Count Act of 1887 (“ECA”) and the need for reform.
That need is profound. The flaws in the ECA were on stark display in the attempted overthrow of the 2020 election results. Indeed, as I will discuss, their exploitation was a central part of the alleged conspiracy now under criminal investigation by federal and state authorities. The U.S. previously had a long record of peacefully transferring presidential power. That ended on January 6, 2021. The ECA’s flaws played a role in that breach—and the risk of undemocratic or violent efforts to seize power has not ended. As Vice Chair of the Select Committee to Investigate the January 6th Attack on the United States Capitol, Liz Cheney, warned, “it’s an ongoing threat,” and Americans “must understand how easily our democratic system can unravel if we don’t defend it.”1 Reforming the ECA is essential to preventing a recurrence of the chaos we saw on January 6, 2021—or worse.
S. 4573, the Electoral Count Reform and Presidential Transition Improvement Act of 2022 (“ECRA”)2 is a significant effort to make badly-needed reforms. Introduced on July 20, 2022 by Senators Susan Collins and Joe Manchin, the ECRA is the result of thoughtful bipartisan negotiations. It is a good thing when leaders in both parties work together to find solutions to our nation’s most pressing concerns.
The result of their labor is a step forward on fixing the ECA—indeed, several steps forward. The ECRA makes key improvements such as striking the vague and dangerous failed election provision, clarifying that the role of the Vice President during the counting of electoral votes in Congress is purely ministerial, and raising the threshold for objections in Congress.3
These improvements, however, are not the sole matters that this Committee should confront, particularly at the first stage of the legislative process. We must also ask, does the initial form of the ECRA effectively respond to the many weaknesses in the ECA that were revealed in the campaign to overthrow the 2020 election—and to the ongoing risk of such attacks in 2024 and beyond.
In that regard, it is my view the Committee should build upon the foundation that the bipartisan negotiators have laid. As I detail below, there is room for improvement of a number of the provisions in the ECRA. Otherwise, we may actually create greater uncertainty in key aspects of counting electoral votes and invite unwelcome manipulation.
I believe that the Committee should focus its attention on the following four areas.
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