Congress aims to avoid replay of the Jan. 6 Capitol riot by amending electoral count law

Emily Sacia
Arizona Republic

Congress is aiming to amend an archaic 1887 law and reform electoral vote counting, hoping to quell concerns about a potential repeat of the Jan. 6, 2021, U.S. Capitol riot ahead of the 2024 presidential election and restore voter confidence.

The bipartisan Electoral Count Reform and Presidential Transition Improvement Act, introduced by Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., would clarify the vice president’s role in electoral-vote counting as strictly ministerial and expand the threshold necessary for both chambers to object to a state’s electoral votes.

The bill is seen by Republicans and Democrats in the Senate as a necessary byproduct amid the aftermath of the deadly Capitol siege by a mob of then-President Donald Trump's supporters who tried to stop the certification of then-President-elect Joe Biden.

“What we can’t allow is for history to think that the violence on Jan. 6 was commonplace, or that it was just a peaceful protest. It was absolutely a violent insurrection, and it was incited by the (former) president,” Sen. Krysten Sinema, D-Ariz., an original cosponsor of the Senate’s reform bill, told The Arizona Republic.

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Arizona Sen. Kyrsten Sinema made remarks about bipartisanship as a guest of Sen. Mitch McConnell during an event at the McConnell Center on the campus of the University of Louisville in Louisville, Ky. on Sept. 26, 2022.

“We all got together in a bipartisan way to make changes to the Electoral Count Act, so that we could ensure that nothing like that (Jan. 6) happened again,” she said.

Current law requires only one member of both the House and the Senate to object to a state’s electoral votes. If a member of the House of Representatives is joined by a senator in contesting a state’s tally, a two-hour debate and a vote in each chamber follows. A majority is required in both chambers — now controlled by Democrats — to throw out a state’s electoral votes.

The Senate’s bill intends to raise that threshold to one-fifth of both chambers of Congress.

Sinema argues that requirement would prevent certain lawmakers from “hijacking the process” for partisan purposes, making reference to Arizona’s contested results by GOP lawmakers on Jan. 6.

Trump had urged Republican lawmakers in public and behind closed doors to denounce Arizona’s 11 electoral votes won by Biden, baselessly claiming the election was “rigged” despite not being able to provide evidence of voter fraud.

When Congress convened Jan. 6 to certify the 2020 presidential results — a mostly ceremonial process — Sen. Ted Cruz, R-Texas, joined by Rep. Paul Gosar, R-Ariz., contested the state’s slate of electors, prompting an hours-long delay as rioters simultaneously breached the Capitol intending to stop Biden’s certification altogether.

An eventual challenge to throw out Arizona’s electoral votes failed in both chambers: the Senate voted 93 to 6, and the House 303 to 121. Reps. Andy Biggs, R-Ariz., Debbie Lesko, R-Ariz., and Gosar were the state’s only congressional members to vote against certifying Biden’s 11 electoral votes from Arizona.

Trump enthusiasts have continued to sow mistrust among voters and prop up election-deniers as candidates for the U.S. Senate and other statewide races in Arizona, despite the failed efforts to throw out the state’s electoral votes during the joint session of Congress.

Still, Bill Gates, a Republican and Maricopa County Board of Supervisors chair is encouraged by the Senate’s bipartisan bill to provide additional clarity at the federal level for future elections.

“This is the kind of thing we need to be looking for right now,” Gates said. He believes the proposed legislation will help to restore “confidence among a broad swath of voters.”

The Electoral Reform Act, co-sponsored by 12 Republicans and 13 Democrats, including Sen. Mark Kelly, D-Ariz., cleared the Senate Rules Committee 14-1 with the support of Senate minority leader Mitch McConnell, R-Ky. But strong bipartisan support of the Senate’s bill hasn’t dissuaded Cruz from bucking his GOP colleagues. Cruz, the first to object to certifying Arizona’s electoral votes, was the only committee member to vote against the legislation.

Senate Minority Leader Mitch McConnell, R-Ky., left, speaks to Sen. Richard Shelby, R-Ala., as they attend a Senate Rules and Administration Committee meeting on the Electoral Count Reform and Presidential Transition Improvement Act, at the Capitol in Washington, Tuesday, Sept. 27, 2022.

Cruz cited concerns that the Senate’s bill posed “serious constitutional questions,” enhances the “federalization” of elections and reduces Congress’ ability to respond to concerns of voter fraud.

“This bill doesn’t do any of that,” Rick Hasen, an election law expert at the UCLA School of Law, said in response to Cruz’s remarks. "You can see Senator Cruz as simply trying to appeal to the Trump base of the party. I don't think his arguments are made in good faith, and I don't think they stand up."

The Senate's bill doesn’t change how states appoint their electors or how election disputes are resolved, rather it reinforces that a state’s top election official is responsible for submitting its choice of electors in accordance with their state laws prior to election day.

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Hasen reiterated the legislation’s top priority: to clarify ambiguous provisions in the Electoral Count Act that Trump and his allies tried to exploit to manipulate the 2020 presidential election.

The bill largely is favored to pass the Senate in the post election, lame-duck session with more than enough Republican support to break any potential filibuster, Sinema said last week in an interview with The Republic.

Whether it will pass in the House and be enacted into law remains to be seen.

House lawmakers have passed legislation that closely resembles the Senate’s bill to amend the antiquated Electoral Count Act. The Presidential Election Reform Act, introduced by Reps. Zoe Lofgren, D-Calif., and Liz Cheney, R-Wyo., ensures a state's electoral votes get transmitted and tallied in Congress and expands the threshold necessary for both chambers to a state’s electoral votes to one-third.

The PERA bill passed the House predominantly on party lines, with nine Republicans, all of whom have lost their bid for reelection or have chosen to retire amid falling out of Trump’s favor, joining Democrats.

Arizona's four House Republicans — Biggs, Gosar, Lesko and Rep. David Schweikert, R-Ariz., opposed the bill.

It remains unclear if Republican lawmakers in the House will be more inclined to vote yes on the Senate’s bipartisan version of legislation to amend the Electoral Count Act, but House Democrats are eager to get any type of reform passed.

“Not only do we need to pass these laws that better protect our democracy, but we need leaders on both sides of the aisle that are willing to stand up and support American democracy,” said Rep. Greg Stanton, D-Ariz.