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Bipartisan senators reach a general agreement on updating Electoral Count Act

A bipartisan group of senators working to reform the Electoral Count Act has reached a general agreement and is working on legislative text during this work period, which ends June 24, according to two sources familiar with the matter.  

The group met on Wednesday night to discuss changes to the law, which governs the way Congress counts and certifies votes from the Electoral College after each presidential election. 

"We had an excellent meeting last night where we resolved almost all of the issues," Republican Sen. Susan Collins, of Maine, said Thursday.

Collins said the group has already drafted language that would make clear that the vice president's role is ministerial in the process of counting Electoral College votes. The new language also raises the threshold for triggering a challenge to a state's slate from one member in each chamber to 20% of the members in each body. There would be a majority vote for sustaining an objection. 

"That's all drafted and agreed to," Collins said. "There are some other issues that are more complicated that we made a lot of progress on last night."

The group has also agreed to allow federal grants that are used under the Help America Vote Act to be used to help security for poll workers and election officials, Collins said. She added that there's "a sense of realism that we need to act this year to get it done, and we want to try to prevent another Jan. 6."

"Susan Collins put a group together and we've had a lot of participation. It was a very good meeting," West Virginia Democratic Senator Joe Manchin told reporters on Thursday morning. "It was a very productive meeting and I feel very confident we'll do something good."

Advocates for reforming the Electoral Count Act of 1887 argue that it is outdated and does not provide clear guidance about the role that Congress plays in certifying election results. That ambiguity, they say, created the circumstances that led to the attack on the Capitol on Jan.6, 2021, when thousands of then-President Trump's supporters stormed the Capitol to try to stop Congress from affirming what the states had already determined — that Joe Biden had won the 2020 presidential election. 

"Having just spoken to my colleagues on what minor differences we still have, I think you'll hear something within the next week or so before the July recess," Ohio Republican Senator Rob Portman said. "And that will be, I hope, a message both on how to fix the the electoral count system here in the Congress, which everybody believes is so antiquated, needs to be changed, but also to show this institution can get its act together and do something even on an issue that tends to be very partisan."

In April, Manchin and Collins, who are leading the effort to reform the law, welcomed input from a bipartisan group of experts and legal scholars convened by the American Law Institute. Before laying out their proposals, the group said that the Electoral Count Act is "widely seen to be impenetrably complex and poorly conceived, especially in its definition of the congressional role in the final tally of electoral votes for President and Vice President."

"ECA reform should clarify that Congress has an important but limited role in tallying electoral votes, consistent with the best understanding of the Twelfth Amendment and other relevant authorities," the group of experts wrote. "ECA reform should help check efforts by any State actor to disregard or override the outcome of an election conducted pursuant to State law in effect prior to Election Day, including State law governing the process for recounts, contests, and other legal challenges."

A separate group of election law scholars wrote a Washington Post op-ed in January that made some suggestions to reform the law, including that Congress must accept results from a state when it receives only one official slate of electors. The scholars said that if a state submits a competing slate of electors, Congress should be incentivized to settle which is the true slate. But, if that can't be determined, they suggest that a governor, state supreme court or other institution should make the final decision. 

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