Republican Rep. Liz Cheney (Wyo.) and Democratic Rep. Zoe Lofgren (Calif.) released legislation Monday to streamline and clarify how Congress certifies presidential elections, setting the stage for a vote as early as this week on the bill, which supporters argue would prevent another post-election showdown like the one that erupted on January 6, 2021.
The Presidential Election Reform Act would clarify the vice president only has a “ministerial” role when Congress counts electoral votes, meaning vice presidents can’t use their power as presiding officer to decide whether electors are valid—a power former President Donald Trump pushed then-Vice President Mike Pence to exercise last year.
Members of Congress could still object to electors, but one-third of the House and Senate would need to sign on (up from just one senator and one representative currently), and objections would only be allowed under specific circumstances, like if a state casts its electoral votes illegally or picks a candidate who isn’t eligible to be president.
The bill would also require states to award their electoral votes based on processes that were enshrined in state law ahead of Election Day, preventing state lawmakers from changing their policies depending on who won the election.
The bill says governors need to certify the results in their state by mid-December, and Congress should treat slates of electors sent in by governors as “conclusive”—but if a governor violates the law, a court can order another state official to certify the election.
The Presidential Election Reform Act could advance fairly quickly. The House Rules Committee is scheduled to take up the bill on Tuesday, and House Majority Leader Steny Hoyer (D-Md.) reportedly said last week a vote could take place this week.
If the Presidential Election Reform Act passes, it’s unclear how lawmakers will reconcile it with the Senate’s parallel efforts to modify election laws. Sens. Joe Manchin (D-W.Va.) and Susan Collins (R-Maine) introduced a bill earlier this year that overlaps with the Cheney-Lofgren bill but is slightly different. At least 10 Republicans have indicated support for the Manchin-Collins legislation, which is necessary to get past the Senate’s 60-vote filibuster rules, but the Senate is reportedly expected to take it up after the November midterms.
Lawmakers began discussing election reforms after Trump tried to overturn his 2020 loss, a gambit that exposed vulnerabilities in the nation’s byzantine election laws. Armed with baseless claims of widespread voter fraud, Trump and his allies pushed swing state lawmakers to block the certification of President Joe Biden’s state-level wins, coordinated with Republicans in some states to send in “alternate” pro-Trump slates of electors, pressured Republican members of Congress to object to Biden’s electoral votes and argued Pence should refuse to count pro-Biden electors. Pence and some congressional Republicans rejected this request, angering Trump and setting the stage for hundreds of Trump’s supporters to riot in the Capitol during a joint session of Congress on January 6, 2021. Legal experts widely saw Trump’s efforts to derail Biden’s win as dubious at best, but some of the confusion was driven by the Electoral Count Act of 1887, which set procedures for Congress to certify presidential races but has been derided as “hopelessly incomprehensible,” “maddeningly complex” and “almost unintelligible.” Members of both parties have shown openness to reforming and clarifying the Electoral Count Act, which itself was written in response to the contested election of 1876.
The push to reform the electoral process could be one of Cheney’s final acts before she leaves Congress early next year, following a decisive loss in a Republican primary last month. The staunch conservative and daughter of Vice President Dick Cheney was previously a member of the House Republican leadership, but she was ostracized by the party after she voted to impeach Trump over the January 6 riot and joined a House committee to investigate Trump’s role in the attack. Since losing her primary in August, Cheney has pledged to do “whatever it takes” to prevent Trump from reclaiming the presidency in 2024.
As Congress looks to reform election laws, the Supreme Court is currently hearing a case that could make it easier for state lawmakers to overturn the presidential election results. The plaintiffs in the case support a theory called the “independent state legislature” doctrine, which argues the Constitution gave state lawmakers the sole power to set election policies, superseding state courts and elected officials like secretaries of state. If the high court sides with this theory, it could allow legislatures to upend voting rules themselves.