A right-leaning election reform outfit on Wednesday denounced the current version of legislation to reform the Electoral Count Act, particularly a provision urged by Democratic election attorney Marc Elias.
The original act was enacted in 1887 to prevent presidential election crises such as that of 1876, during which three states submitted competing groups of electors, forcing Congress to determine how to resolve the count. Ultimately Republican Rutherford B. Hayes emerged victorious over Democrat Samuel Tilden.
The ECA attempted to clarify the process leading to Congress’s tally of the Electoral College’s votes. Administration of the law became controversial after the 2020 presidential election when outgoing President Donald Trump contested results in several states and discouraged then-Vice President Mike Pence from certifying the count of electors the following January.
Principally, the Electoral Count Reform and Presidential Transition Act would stipulate that the vice president only plays a ceremonial part in election certification and would preclude state lawmakers from meeting after Election Day to seat their electors.
The amendment to which the conservative Election Transparency Initiative objects would render a governor’s certification of his or her state’s presidential election inconclusive. The group insists this change conflicts with the U.S. Constitution’s provision that states appoint presidential electors.
The initiative’s chairman Ken Cuccinelli, a Republican former Virginia Attorney General, pointed out this change was made at the behest of Elias, now the head of the nonprofit Democracy Docket and an election lawyer who worked for Hillary Clinton and Joe Biden’s campaigns among others. Elias and his organization have been heavily involved in opposing state voter identification requirements and other election security measures.
Cuccinelli further criticized the amendment for allowing courts to compel governors to certify judicially chosen electors.
In a July commentary on the original version of the bill reform, Elias complained it “fails to provide any legal standard for a court to use to overturn a governor’s conclusive certification.”
“For the last two years, Republicans have rejected Democrat attempts to override and rig state election laws for partisan gain, but now Republicans in the Senate appear willing to let the Democrats’ latest attempt slide,” Cuccinelli said in a statement. “The legislation is fundamentally flawed because the Constitution explicitly makes clear that states determine the outcome of presidential elections. Unfortunately, this latest re-write strips states and their duly elected officials of their rights in an act of unprecedented judicial supremacy.”
The former state prosecutor lamented that Republican senators, except Texas’s Ted Cruz, did not oppose the amended version of the bill in the Senate Rules Committee. This week, Senate Democrats inserted the legislation into the $1.66 trillion omnibus spending bill that passed the chamber 75-20 and is now before the Democrat-run House of Representatives. It is widely expected to pass over the objections of House leadership.
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