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Bipartisan senators define vice president's role in electoral certification as "solely ministerial" in new reform proposals

A bipartisan group of 16 senators released two proposals to reform the Electoral Count Act of 1887 Wednesday, including one that defines the vice president's role in the electoral certification as "solely ministerial." 

Republican Sen. Susan Collins of Maine and Democratic Sen. Joe Manchin of West Virginia led the negotiations, aiming to head off a repeat of the rioting at the Capitol that took place on Jan. 6, 2021, when then-President Donald Trump tried to convince to Vice President Mike Pence to help overthrow the election by not certifying the 2020 election results.

The first proposal would update the ECA, clarifying the roles of Congress, the states and the vice president in affirming the electoral count. Under the bill, Congress identifies the single official in the state — usually the governor — who is empowered to submit the state's slate of electors in order to certify election results.

It also describes the vice president's role as "solely ministerial," stating that "he or she does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors," according to a one-page summary of the proposal. 

The legislation would also raise the threshold to one-fifth of the members of the House and the Senate to object to the election results. Currently, just one House member and one senator may object to a state's elector or slate of electors. The bill also provides guidelines for a president and vice president to receive federal resources during their transition into office to ensure an orderly transfer of power.

The second proposal prioritizes the safety of election officials and poll watchers by increasing the penalty time to a maximum of two years in prison if an individual intimidates election officials. This bill also aims to improve the handling of mail-in ballots and to provide guidance to states where absentee voting process are in place. In addition, this legislation would reauthorize the Election Assistance Commission for five years in an effort to bolster security of the federal elections system by conducting cyber security testing for voting systems.

"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 sixteen 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 addition to Collins and Manchin, Republican Sens. Rob Portman of Ohio, Mitt Romney of Utah, Lisa Murkowski of Alaska, Thom Tillis of North Carolina, Shelley Moore Capito of West Virginia, Todd Young of Indiana, Ben Sasse of Nebraska and Lindsey Graham of South Carolina helped craft the proposals. Democratic Sens. Kyrsten Sinema of Arizona, Jeanne Shaheen of New Hampshire, Mark Warner of Virginia, Chris Murphy of Connecticut, Ben Cardin of Maryland and Chris Coons of Delaware were involved in the negotiations. 

It is unclear when the proposals will receive a vote on the Senate floor, since the Senate is currently working on a bill to provide funding for the American semiconductor industry to improve its competitiveness against China in the technology and manufacturing sectors. Advancing the package will require the votes of 10 Republican senators.

But Senate Minority Leader Mitch McConnell has signaled he's open to the  reform on Tuesday. "It needs to be fixed," he said. "And I've been in constant touch with Sen. Collins and sympathetic with what she's trying to achieve."

Democratic Sen. Amy Klobuchar, who chairs the Senate Rules Committee, said she'll convene a hearing "in the coming weeks" on the legislation.

"We must update the antiquated Electoral Count Act to ensure that electoral votes for president accurately reflect the election results in each state and to improve the process for counting electoral votes in Congress," she said.

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