Susan Collins: Reform the Electoral Count Act to Avoid Another January 6

Imagine my surprise when on Jan. 6, 2017, I found out that I had received one electoral vote to be vice president of the United States — an office for which I was not a candidate — from a “faithless elector” from the state of Washington.

Four years later, on Jan. 6, 2021, when a violent mob overran the Capitol, I realized that my unearned vote in the Electoral College was not amusing. This seemingly innocuous vote was an indication that our system of counting and certifying votes for president and vice president had deep and serious structural problems.

These unfortunate flaws are codified in the Electoral Count Act, which guides the implementation of part of the presidential election process included in the Constitution. This 1887 law, vaguely written in the inaccessible language of a different era, was intended to restrain Congress, but in practice it has had the unintended effect of creating ambiguities that could potentially be used to expand the role of Congress and the vice president in ways that are contrary to the Constitution.

Despite its defects, the law was not an issue for more than a century because of the restraint of the people who exercised the serious, but limited, constitutional responsibility of counting the votes. Vice presidents and Congresses sustained the will of the people — even when they did not like the result.

For example, we saw this in 1961 and again in 2001, when Vice Presidents Richard Nixon and Al Gore presided in a fair and dignified manner over the counting of the electoral votes despite having lost close elections for president. Vice President Gore even refused to hear Democratic objectors who were trying to make him president.

Then came the election of 2020. President Donald Trump and his allies both exploited the weaknesses of the law and ignored the language of the Constitution. Mr. Trump argued that the vice president could overturn the election results. A violent mob temporarily halted the electoral count that would confirm President Biden’s victory.

Vice President Mike Pence’s courage and integrity on that day cannot be overstated. He stood up to a determined president who relentlessly pressured him to swing the election his way. And he refused to be intimidated by rioters who assaulted police officers, swarmed the Capitol and chanted “Hang Mike Pence!” As the dangerous mob neared the Senate chambers, the vice president and senators had to be whisked away.

The House, too, was forced to evacuate, bringing the electoral count to a halt. How well I remember a sparse group of Capitol Police officers urging us to “Run! Run!” as we made our way to a secure location, while other members of the overwhelmed Capitol Police battled the mob. For hours, we watched on television as rioters broke into the Senate chamber and rummaged through our desks.

Finally, senators were told it was safe enough for us to proceed back to the chamber, which all of us were determined to do so that we could resume the counting of the votes. The walk back that evening was very different. In contrast to the small number of police officers guiding our evacuation, F.B.I. tactical teams with riot gear, National Guard members and police officers lined our route. Vice President Pence and the Congress returned to the Capitol that night and completed the final, constitutionally mandated step before the inauguration of a new president — we counted the votes.

That day reminded us that there is nothing more essential to the survival of a democracy than the orderly transfer of power, and there is nothing more essential to the orderly transfer of power than clear rules for effecting it. We should not depend on the fidelity and resolve of vice presidents to follow the intent of these rules; the law should be crystal clear on the parameters of the vice president’s powers and consistent with the very limited role set forth in the Constitution. Vice President Pence’s actions on Jan. 6 were heroic. But the peaceful transfer of power shouldn’t require heroes.

Much debate has focused recently on the casting of ballots. Much more attention must be paid to the counting and certifying of votes. Our democracy depends on it. To prevent the subversion of the electoral process, Congress must reform the Electoral Count Act. A bipartisan group of 16 senators is working to do that.

The ambiguously phrased Electoral Count Act must be amended to make absolutely clear that a vice president cannot manipulate or ignore electoral votes as he or she presides over this joint session of Congress. But other flaws in the law must also be remedied. For instance, the law’s threshold for triggering a challenge to the results of a state is far too low: Only one representative and one senator are required to object to a state’s electors. In the past, members on both sides of the aisle have challenged the vote without any real evidence of wrongdoing.

Our group of senators shares a vision of drafting legislation to ensure the integrity of our elections and public confidence in the results. We want a bill that will be considered by committees, debated on the Senate floor, garner the support of the Senate’s two leaders and pass the Senate with 60 or more votes.

The broader we cast our net, however, the more difficult it will be to achieve consensus. We have to be careful about expanding a reform bill to include provisions that go well beyond correcting the current law, strengthening election security and protecting poll workers from threats of violence. Relitigating bills that have already been rejected won’t get us to the finish line. Our primary focus must be on avoiding another Jan. 6 by reforming the Electoral Count Act. That is the vital goal in itself, our duty to perform and a worthy mission that should not be derailed by good-faith but ultimately partisan provisions.

We do not know if we will succeed, but we are trying to fix a serious problem.  The senators working on this legislation have philosophical, regional and political differences. When we disagree, we attempt to persuade one another — we cajole, haggle and even argue — but we do so with an eye on a common goal. That is the way it is supposed to work in a democracy. Maybe we could refer to the process as “legitimate political discourse.”

Susan Collins is a Republican senator from Maine. She is leading a bipartisan group of senators who are working to reform the Electoral Count Act.

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