ALI Group Cited in Proposals to Reform and Modernize ECA

This week, two proposals were introduced which include legislation to reform and modernize the outdated Electoral Count Act of 1887 to ensure that the electoral votes tallied by Congress accurately reflect each state’s vote for President. 

Led by U.S. Senators Susan Collins (R-ME) and Joe Manchin (D-WV), the bipartisan group also includes Rob Portman (R-OH), Kyrsten Sinema (D-AZ), Mitt Romney (R-UT), Jeanne Shaheen (D-NH), Lisa Murkowski (R-AK), Mark Warner (D-VA), Thom Tillis (R-NC), Chris Murphy (D-CT), Shelley Moore Capito (R-WV), Ben Cardin (D-MD), Todd Young (R-IN), Chris Coons (D-DE), Ben Sasse (R-NE), and Lindsey Graham (R-SC). 

From the release:

“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 senators said in a joint statement. “Through numerous meetings and debates among our colleagues as well as conversations with a wide variety of election experts and legal scholars, we have developed legislation that establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President. We urge our colleagues in both parties to support these simple, commonsense reforms.”

In developing the bills, the senators received input from state election officials, as well as from an ideologically diverse group of election experts and legal scholars, including the American Law Institute. Rules Committee Chairwoman Amy Klobuchar (D-MN) and Ranking Member Roy Blunt (R-MO) also provided helpful insight. 

“Debates over the political ‘rules of the game’ can be fraught with suspicion and jockeying for advantage. When these rules change, there must be buy-in from both parties to maintain trust in the system,” said Matthew Weil, Executive Director of the Democracy Program at the Bipartisan Policy Center.  “This bipartisan Senate framework is a critical step for shoring up ambiguities in the Electoral Count Act. These senators, especially Sens. Manchin and Collins, should be commended for finding common ground on a matter that is so foundational to our democracy: faith in the system that selects our leaders.”

“We are impressed with the draft Electoral Count Act reform legislation developed by a bipartisan Senate working group, including Senators Collins, Manchin, Romney, and Murphy,” said Bob Bauer and Jack Goldsmith, co-chairs of the Presidential Reform Project.  “Our work on these reform issues, which has included co-chairing a group of experts convened by the American Law Institute (ALI), has convinced us that major improvements in the current law are both urgent and achievable. We believe the legislation as proposed will help curtail threats to future presidential elections that would erode the foundational democratic principles of our country. It merits broad support.”

The first bill, the Electoral Count Reform and Presidential Transition Improvement Act, is co-sponsored by Senators Collins, Manchin, Portman, Sinema, Romney, Shaheen, Murkowski, Warner, Tillis, Murphy, Capito, Cardin, Young, Coons, Sasse, and Graham.  The bill includes the following provisions:

1)   Electoral Count Reform Act. This section would reform and modernize the outdated Electoral Count Act of 1887 to ensure that electoral votes tallied by Congress accurately reflect each state’s vote for President. It would replace ambiguous provisions of the 19th-century law with clear procedures that maintain appropriate state and federal roles in selecting the President and Vice President of the United States as set forth in the U.S. Constitution. Click HERE for a one-pager on the Electoral Count Act reform section.

2)   Presidential Transition Improvement Act. This section would help to promote the orderly transfer of power by providing clear guidelines for when eligible candidates for President or Vice President may receive federal resources to support their transition into office. Click HERE for a one-pager on the presidential transition section.

Click HERE for the text of the Electoral Count Reform and Presidential Transition Improvement Act.

The second bill, the Enhanced Election Security and Protection Act, is co-sponsored by Senators Collins, Manchin, Portman, Shaheen, Romney, Sinema, Murkowski, Warner, Tillis, Murphy, Coons, and Cardin. The bill includes the following provisions:

1)   Enhanced Penalties to Protect Our Elections Act. This section would double the penalty under federal law for individuals who threaten or intimidate election officials, poll watchers, voters, or candidates. Under current law, threats of violence or intimidation against these individuals are punishable by no more than one year in prison. This penalty would be raised to no more than two years in prison.  

2)  Postal Service Election Improvement Act. This section aims to improve the handling of election mail by the U.S. Postal Service and provide guidance to states to improve their mail-in ballot processes where permitted under state law. 

3)   Election Assistance Commission Reauthorization. This section would reauthorize the Election Assistance Commission (EAC) for 5 years, and require the EAC to conduct cyber security testing as part of its testing and certification process for voting systems. Established by the Help America Vote Act of 2002, the EAC is an independent agency that helps states improve the administration and security of federal elections. The EAC administers grants to states and develops non-binding guidance and best practices for election officials in various areas, including cybersecurity, election audits, and voting accessibility. The authorization for the EAC, which is led by two Republican and two Democratic commissioners, expired in fiscal year 2005, although the agency has continued to receive annual appropriations for operations. 

4)  Election Records Protection Act. This section would clarify that current law requires electronic election records be preserved. It would also increase the existing maximum penalties for individuals who willfully steal, destroy, conceal, mutilate, or alter election records from $1,000 to $10,000 and from up to one year in prison to up to two years in prison.  In addition, it would make it illegal to tamper with voting systems. 

Click HERE for the text of the Enhanced Election Security and Protection Act.

During the Senate session, Senator Cardin presented the Senate group’s proposal, highlighting ALI’s work in drafting ECA reform.

Read the full release online here. 

Background:

At the invitation of the leadership of The American Law Institute, a group whose members span a range of legal and political views came together to consider possible Electoral Count Act (ECA) reforms. Despite holding diverse legal, political, and ideological commitments, the group is united by the belief that Congress should reform the ECA before the 2024 presidential election. The group has agreed on several general principles that should guide ECA reform, as well as specific proposals as to what ECA reform should seek to accomplish. Read the group’s complete set of principles here, and read ALI’s press release here.

The members of the group, selected for their deep and varied experience in law and government, are:

• Bob Bauer (NYU School of Law and former White House Counsel) (Co-Chair)
• Elise C. Boddie (Rutgers Law School, and former litigation director of the NAACP Legal Defense and Educational Fund)
• Mariano-Florentino Cuéllar (President of the Carnegie Endowment for International Peace, and formerly a Justice of the California Supreme Court)
• Courtney Simmons Elwood (former General Counsel of the Central Intelligence Agency)
• Jack Goldsmith (Harvard Law School and former Assistant Attorney General, Office of Legal Counsel) (Co-Chair)
• Larry Kramer (President of the William and Flora Hewlett Foundation, and former Dean of Stanford Law School)
• Don McGahn (Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University, and former White House Counsel)
• Michael B. Mukasey (former United States District Court Judge and former United States Attorney General)
• Saikrishna Prakash (University of Virginia School of Law)
• David Strauss (University of Chicago Law School)

More detailed biographies are attached to the Statement of Principles for ECA Reform.

“The American Law Institute is proud to have convened this group and to have facilitated its important work,” said ALI President David F. Levi and ALI Director Richard L. Revesz in a joint statement. “Because of the need for quick action, this project has not gone through the typical ALI bicameral process, which requires approval by both our Council and membership, and therefore cannot be considered the official work of the Institute. Our support for this project nonetheless contributes to the rule of law, which is a core priority for the ALI. We would like to extend our deepest gratitude to this group for their critical and urgent work. We also would like to thank ALI Legal Fellow Harry Larson and Professor Goldsmith’s excellent team of research assistants for providing valuable support to this project.”