by Gabe Fleisher
Good morning! It’s Thursday, July 21, 2022. Election Day 2022 is 110 days away. Election Day 2024 is 838 days away.
Bipartisan lawmakers seek to prevent a January 6th redux
Before January 6th was synonymous with a deadly riot at the Capitol, the date had actually played a key role in every presidential election since 1888.
That was the year after Congress passed the Electoral Count Act, a law inspired by the election of 1876 — a race even closer and more chaotic than in 2020: it was eventually decided by a bipartisan commission and a controversial deal that put the popular vote loser in power.
Lawmakers enacted the ECA as a way to clarify the election process and avoid the need for any more commissions in the future. Much of the statute focuses on laying out the procedures for Congress’ meeting to certify electoral votes, and how to deal with any objections that might come up; the law set the date for that meeting on January 6th.
However, almost two centuries later, the ECA is no longer the instrument of clarity its authors intended. The 19th-century law is vaguely written, and former President Donald Trump and his allies took advantage of its murky language in 2020 to try to cling to power — including by entering objections to the vote during the January 6th meeting, while rioters cheered them on from the outside.
A bipartisan group of senators has been working since then to update the ECA, and after 18 months of negotiations, they introduced two pieces of legislation on Wednesday.
The Electoral Count Reform and Presidential Transition Improvement Act was written with the support of nine Republican senators; the Enhanced Election Security and Protection Act, was written with the support of five. (Ten Republicans are needed for a bill to break the 60-vote filibuster threshold, but each measure is expected to pick up additional backers.)
I want to take a close look at the two proposals, so you understand what these reform bills are trying to achieve. Here are the key provisions in both bills, and the facets of the 2020 election aftermath they seek to prevent from happening again:
What happened in 2020: Trump urged state leaders to certify him as the winner of their state’s electoral votes, even in places where President Biden won the popular vote. “You are the real power,” he reportedly told state legislators. “The most important people are you.”
What the new proposal does: It affirms that presidential electors in each state must be appointed “in accordance with the laws of the state enacted prior to election day.”
That means that if a state’s laws before the election say that its electoral votes must be awarded to their state’s popular vote winner — as laws in all 5o states currently say — then legislators can’t change that after Election Day so the electors are awarded to somebody else.
Fake elector slates
What happened in 2020: Republican officials in seven states submitted fake elector slates to Congress that falsely said Trump had won their state electors instead of Biden, and then urged lawmakers to count those on January 6th instead of the real slates.
What the new proposal does: It clarifies that the elector slate submitted by a state’s governor is the only one with any meaning and “shall be treated as conclusive” in awarding a state’s electoral votes.
What happened in 2020: Trump launched a series of legal challenges in a variety of state and federal courts to object to the election results.
What the new proposal does: It sets up a process for any election challenges brought by “aggrieved” presidential candidates to be heard on a expedited bases by a three-judge panel, whose decisions could then be directly appealed to the Supreme Court.
The VP’s role
What happened in 2020: Trump pressured his vice president, Mike Pence, to throw out electors at the January 6th meeting, which the VP presides over in his ceremonial role as president of the Senate.
What the new proposal does: It declares that the vice president’s role at the January 6th certifications is “solely ministerial” and that VPs have “no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors.”
What happened in 2020: During the January 6th certification, lawmakers forced votes on whether to accept the electors from several states, because the ECA allows objections to be heard as long as they are submitted by at least one member of both the House and Senate.
What the new proposal does: It requires that objections to the electoral votes be submitted by one-fifth of the members of each chamber — a bar the 2020 objections did not meet — in order to force a vote on them during the January 6th session.
What happened in 2020: The Trump administration initially refused to acknowledge Biden as the president-elect, blocking his transition team from receiving federal resources they were supposed to receive.
What the new proposal does: It states that if neither candidate has conceded the presidential election within five days, both candidates should receive federal transition resources until any election challenges have been “substantially resolved.”
Election worker safety
What happened in 2020: Election workers across the country faced widespread death threats.
What the new proposal does: It doubles the penalty under federal law for threatening or intimidating election workers, from one year in prison to two.
More news you should know
— Speaking of January 6th, the House select committee investigating the Capitol riot will hold a primetime hearing tonight at 8 pm.
The panel will hear testimony from two Trump White House advisers — former deputy national security adviser Matthew Pottinger and former deputy press secretary Sarah Matthews — to dissect the 187 minutes in which the riot was raging but Trump declined to try and protect the Capitol or urge the protesters to leave.
— “Giuliani ordered to testify in Georgia 2020 election probe” Associated Press
— “Federal investigation of Hunter Biden reaches critical juncture, sources say” CNN
— “Documents detail the secret strategy behind Trump's census citizenship question push” NPR
— “Fetterman says he has ‘nothing to hide’ on health, will be back campaigning soon” Washington Post
What’s going on in politics today
All times Eastern. Click on an event’s time to watch it.
President Biden will receive his daily intelligence briefing (9:30 am) and travel to Pennsylvania. While there, he will deliver remarks in Wilkes-Barre on the bipartisan gun control law and reducing gun crime (3:15 pm) and participate in a Democratic National Committee fundraiser (6:40 pm). He will then travel to Delaware, where he will spend the weekend.
Vice President Harris will travel to Charlotte, North Carolina, where she will tour a community computer lab (11:50 am), deliver remarks on investing in affordable, accessible high-speed internet (1:30 pm), and hold a roundtable with state legislators on reproductive rights (2:30 pm).
First Lady Jill Biden will visit summer learning programs at elementary schools in Detroit, Michigan (10 am) and Athens, Georgia (1:45 pm).
White House press secretary Karine Jean-Pierre will hold a press gaggle aboard Air Force One during the flight to Pennsylvania.
The Senate will convene (10 am) and vote to confirm Reuben Brigety as the U.S. ambassador to South Africa (11:30 am).
The House will convene (9 am) and vote on the Right to Contraception Act, which would create a statutory right for individuals to obtain contraceptives and for health care providers to distribute them, codifying the Supreme Court’s landmark 1965 decision in Griswold v. Connecticut.
The House January 6th Committee will hold its eighth hearing (8 pm).
House Speaker Nancy Pelosi will hold her weekly press conference (10:45 am).
The Supreme Court is out until October.
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