Changes to the electoral count act before the senate rules and administration committee. We hear from a Bipartisan Panel of election will experts advocating for the needs of eight wall which was written in 1887 in order to prevent a repeat of the january 6 attack on the u. S. Capital. Thank you so much, everyone. Not much waiting at all. I do that because we have chaired this committee together and we are good friends. As we approach this bill, electoral count act, it is important the spirit of bipartisanship gets us through and gets this passed. Our colleagues will be here shortly. Senator king, who we will hear from, who has been a major leader in this area, worked with me and senator durbin on our bill that we presented to the group that came together to work on this. I want to thank senator cap and who is a valued manager of the committee. I know senator warner was also part of the group. We are joined by the former secretary of state, senator padilla, a valued member of our community, as well as senator fischer, we might see up here at some point in the coming congress. I think all of you and i want to thank senator collins and senator manchin to this beautiful hearing room. You can look at the ships, i know you like to sail, senator manchin. The electoral count act was passed in 1887 in response to the disputed election between Rutherford Hayes and samuel tilden, something that comes off of the lips of everyone. I point this out because it was a long time ago. That bill was put in place to govern how congress, at that time, counted electoral votes for president. It has not gotten a lot of attention in the next 130 years. It became the cornerstone, sadly, of a plan hatched by President Trump and his allies that led to an attempt at an insurrection at the capitol. The will of the American People could have been overturned. It culminated in a violent mob desecrating our nations capitol. Enemies of our democracy sought to exploit this antiquated lot to subvert the results of a free and fair election. I remember this day well because senator blunt and i were the ones at 3 30 in the morning with Vice President pence walking through the broken glass. We had done the walk 13 hours before. It was a big ceremony. At the end of the day, it was just us, closed doors, broken windows, glass all over the place and spraypainted columns. We went forward. Part of that is working together to make sure that laws cannot be used by anyone of any Political Party or persuasion in a way that undercuts the will of the people. Number 1, the claim was made that the electoral count act as it exists would allow the Vice President to refuse to accept electoral votes that were voluntary cast. We watched in horror as the mob stormed the capital enchanted hang mike pence we know the claims were false. In the proposals we have put forward by the Bipartisan Group make it absolutely clear that the Vice President does not have this power. In the days and weeks before the insurrection, they claimed a lot allowed state legislatures to appoint their own electors and state representatives in wisconsin and michigan were pressured to do just that. They claim the law allowed road electors to substitute their own view for the will of the voters. They recruited people in multiple states to send in fraudulent votes. My proposal and the bipartisan work that you have done would guard against efforts like those by ensuring candidates can go to federal court to stop rogue governors from sending votes. I think everyone learned one senator and one congressman have to be joined together and can actually gum up the preceding. We realized it would take 24 hours before we even knew the insurrection was coming our way. As senator collins just pointed out to me there have been other objections over the years. People can make objections, no one is suggesting we stop them from speaking out. It is that there has to be a minimum that makes sense before congress would step in and delay the counting of the electoral vote. I will never forget, as i said, what happened that day. I do not think any of us will. It is time that we reform the bill. We released draft legislation, this great Bipartisan Group was put together, led by senator collins and senator manchin. We have engaged with the Group Multiple times, including with our staff assistance. They work for months to get consensus has emerged that it must address at least four key issues. The Vice President , the number of people objecting, the threshold, the way the slates could be picked at the last minute after an election is done and the progress of making sure. I want to make clear that since the 2020 election, when more americans voted than ever before during a global pandemic, we have seen a tidal wave of Voter Suppression laws. We appreciate the work that senator manchin has done to try to fix that. I hope we can get some of those reforms done in the future. With that, i want to turn it over to my friend and colleague and i thank him for his bipartisan work on this. It is our job to ensure this never happens again, no matter who was in charge or what happens. We are focused on the future. Thank you, chairwoman klobuchar. We have worked together on these issues for a long time and hopefully as an example of the importance of coming together and making things happen. I am glad to get a chance to talk while senator manchin and senator collins are here to talk about some of the reasons for the hearing today. As you pointed out, the electoral count act of 1887 just turned out to be more troublesome, potentially, than anybody had thought. What happened in 1876 was the tightly contested race you talked about between tilden and hayes. Four states all had two different groups meet on december 6, 1876. Each of those groups sent in competing sets of electoral count. There was no way to deal with that issue at that point in our history. Congress passed the Electoral Commission act, which did not work well, either. With a compromise that put hayes in the white house and largely ended reconstruction in the south at the same time after , really, a decade of fairly great process. It was eliminated as part of that compromise. One of the darker decisions in the history of the country. In the next decade, there were two more really close elections. Congress contemplated that whole time, how do we deal with this if it ever happened again . It took a decade but they came up with the idea of the bill that became the electoral count act. By the way, during that same period of time, they eliminated legislative leaders from the line of succession to the presidency. That is another topic that, frankly, i think we should talk about more closely than we have, though probably not today. Those legislative leaders from the 1880s until the truman presidency were not included in the line of succession to the presidency. They were put back in under president truman and reversed. Under the. Early days of the country it was the president pro temp and then the speaker. Partly because of president trumans Great Respect for the speaker, but they put the speaker first and then the president pro temp. There was a time when president ial leaders, because of how close the act of 1887 seem to do the job. It was no doub it was written in a different age. The language of 1887 is really outdated and vague in so many ways. Both sides of the aisle want to update this act. Recent polling indicates almost everyone who has thought about this wants to update this act. Questions like, what is the proper role of congress . What is the proper role of the Vice President . How should objections be levied . What is the appropriate threshold for that process to start . What is the role of the federal government in this process . Should timelines be altered . We will hear about that at the hearing today. It provides us an opportunity, it was senator klobuchars decision to have this hearing, we have the opportunity to further explore all those questions and get this bill passed this year. I want to thank senator collins and senator manchin for being here, i applaud their efforts. Senator warner worked on the bipartisan effort to come up with a reform bill. I also want to thank chair klobuchar and senator king to put together along with senator durbin to put together a proposal that i think the Bipartisan Group looked into and considered while drafting their legislation. The cooperation we have seen will hopefully be the spirit of cooperation as we move forward and come up with a process that everyone is more comfortable with and will stand the test of time. I want to thank all of you for being here today and i look forward to hearing from our witnesses and moving this process forward. We have been joined by senator warner. Thank you. Lets start out with senator collins, senator manchin and then we will hear from senator king. Sen. Collins thank you, very much. Chairwoman klobuchar, Ranking Member blunt, members of this distinguished committee, members of our Bipartisan Group, senator warner, all the members of this committee, it is a great pleasure to join you this morning to testify on the legislation that a Bipartisan Group of senators has looked to reform the 135yearold electoral count act. The archaic and ambiguous law that governs how congress tallies each states electoral votes for president and Vice President. In four out of the past six president ial elections, the electoral count acts process for county electoral votes has been abused with objections being raised by members of both parties. It took the violent breach of the capitol on january 6 to really shine a spotlight on how urgent the need for reform was. Over the past several months, the dedicated Bipartisan Group of senators have worked very hard to craft the legislation before you. United in our determination to prevent the flaws in this 1887 law from being used to undermine future president ial elections. I would like to acknowledge the contributions of our cosponsors, two members of this committee. Senators murphy, young and graham all played a role. I want to especially thank the chairwoman and Ranking Member for their advice and insight throughout this process. The electoral count reform and president ial it will help ensure votes accurately reflect each states popular vote for president and Vice President. It includes a number of important reforms. Let me highlight just a few. First, it reasserts the constitutional role of the Vice President counting electoral votes. It strictly and solely the idea that any Vice President could have the power to unilaterally accept, reject, change or halt the counting of electoral votes is antithetical to our constitutional structure and basic democratic principles. Second, our bill raises the threshold to lodge an objection to electors to a minimum of 1 5 of the duly chosen and sworn call for the yeas and nays on a vote in congress. Currently only a Single Member is required to object to elector or a slate of electors. Third and perhaps most significant, our legislation ensures congress can identify a single conclusive slate of electors submitted by each state. It clearly identifies a single state official who is responsible for certifying a states elector. It ensures a states elector is certified and appointed pursuant to state law that was in effect prior to election day. Third, it provides president ial candidates with an expedited judicial review of several claims related to a states certificate of electors. This does not create a new cause of action. Instead it will ensure a and efficient adjudication of disputes. Fourth, it would require congress submitted by a state pursuant to the judgment of state or federal court. Finally, our bill strikes a prevention of another outdated law enacted in 1845 that could be used by state legislatures to override their popular vote by declaring a failed election. That is the term that is undefined in that 1845 law. Our bill permits a state to modify the period of this election only in extraordinary and catastrophic circumstances. And also, only as provided under that states law enacted prior to election day. Legislation is supported by numerous election law experts and constitutional scholars with whom we have consulted throughout our deliberations. I am so grateful for their advice and i ask unanimous consent that several of the statements of endorsement be included in the record in this hearing. They will be included. Sen. Collins chairwoman klobuchar, Ranking Member blunt, members of this committee, we have before us an historic opportunity to modernize and strengthen our system of certifying and counting the electoral votes for president and Vice President. Nothing is more essential to the survival of the democracy than the orderly transfer of power. There is nothing more essential to the orderly transfer of power than clear rules. I urge my colleagues in the senate and the house to seize this opportunity to enact the sensible and muchneeded reform before the end of this conference. Thank you so much. Thank you very much, senator collins. We have been joined by the senator who hosted our field h earing. Sen. Manchin senator klobuchar, Ranking Member blunt, senator capito, thank you so much for giving me the opportunity to present some brief remarks. The electoral count act is one of the most important things we have before us in congress today. Electoral count act was originally passed in 1887 and was a valiant but clumsy effort to ensure that another president ial election, like the 1876 contest between Rutherford Hayes and samuel never happened before. The 1876 election was a disaster. It was an absolute disaster. Neither candidate received a majority in multiple states had serious controversies by submitting dueling slates of electors. A deal was struck that ended reconstruction. Hayes was eventually named president. Following two close elections in 1880 in 1880 and 1884 and failed attempts at reform, Congress Passed the electoral count act of 1887. As we saw january 6, 2020 one, a lot of the fixes are not merely outdated but serve as the very mechanisms that bad actors have zeroed in on as a way to potentially the results. As i am sure you will hear from the panel of distinguished experts that testify before you today, the time to reform the eca is way past due. The time for congress to act is now, senator collins said before this congress adjourns. The bipartisan bill produced by senator collins and myself and colleagues. The president ial transition improvement act of 2022. I am thankful for senator collins and her leadership throughout the process and for the valuable input from all my colleagues on both sides of the aisle. I think it is worthwhile mentioning them because they have worked so hard. Senator romney, senator murkowski, senator capito, senator young, senator graham, senator king and all of the cosponsors. I will be among the first to acknowledge that the bill is not perfect but represents many months of hard work and compromise and would serve as a tremendous improvement over the current eca. The bill addresses what the Bipartisan Group identified as the most concerning problems with the eca. It ambiguously clarifies the Vice President is prohibited i repeat that it clarifies the Vice President is prohibited from interfering with electoral votes. It raises the objection threshold by 20 . 87 house members from one. It also improves on only one member of the senate to 20 must ratify. It sets a hard deadline for state governors to certify their respective states electoral result. They cannot wait until after the election and then make changes. If they fail to do so or submit a slate that does not match, it creates an expedited judicial process to resolve. On the last point, the expedited judicial procedure, i would like to take a moment to discuss the reform and explain why we proposed revising the eca. Our group decided to rewrite section 5 regarding the ascertainment of electors, not to create any new causes of action but provide for expedited review of an action that it president ial and Vice President ial candidate can already bring under existing law. It does so in a way that carefully limits the parties this procedure and ensures that the slates of electors in congress tallies are those certified pursuant to laws prior to election day. The group is open to some technical fixes to address common concerns. Striking a five day notice typically required under section 2284. We stand by this provision as a way to quickly and efficiently determine a single, lawful in closing, i would like to remind you that we were all there on january 6. That was for real. We have a responsibility to make sure it never happens again. Electoral count reform improvement act of 2022 is something our country desperately needs and the correction needs to happen now. I thank you for taking this up now and working in an expeditious way. We have great birth great presenters behind us that have all of the knowledge of the resources we used two make this piece of legislation happen. I want to thank senator collins and all members who worked so diligently. Sen. Klobuchar senator king. Sen. King the first thing i want to do is think cap senators and the group that worked on this bill. It is an example of how this should work. It involves compromise and a great deal of research. I want to compliment you on network on network on that work. It gives us a piece of legislation we can work on in this committee and hopefully act within this congress. I think that is very important. This is not a partisan issue. This is a mechanical issue. This is a rules issue that involves how our government should work no matter who is in charge. This coming january 6 of 2025, a democratic Vice President will be in that chair. We have to emphasize that we should not do this on a partisan basis and think this favors one side or another. There is no telling what the circumstances will be in particular states or in congress and a future years. The very first tact class at took government in college and i dont know why i remember this the professor said the thing america has achieved that has really been achieved in World History is the peaceful transition of power. That is unusual in World History. The way we have achieved that is by having a written constitution and a set of rules that have guided us. As senator, and said, if you have ambiguity and confusion, that opens the way to conflict and ultimately violence as we saw on january 6. The concept is the peaceful transfer of power and underling that is a clear set of rules and principles people can all understand and accept in advance. Then it is an mechanical process of counting the votes determining who gets the electoral votes in a particular state and then have congress count those folks, as has been done in the past. I want to thank you all for your leadership on this issue. My colleague from maine played an indispensable role. You have really given us a solid basis upon which to proceed. I dont think there is a more important matter before us in this congress and it is one of hope we can resolve quickly. It should be on an entirely bipartisan basis and it is a fundamental issue that goes to the heart of our democratic system. Thank you, madam chair. Sen. Klobuchar thank you, senator king. There are just a few other things going on you may be involved in. I will call up and thank you for your good work. I will call up our witnesses and senator blunt and i will introduce them and we will swear you in. Before i introduce our panel, i would like to ask for unanimous consent to enter if you statements and letters into the record including elected officials and others, steve simon, the Campaign Legal center , the new york city bar association, democracy 21, at citizens united, and the cato institute. Without objections, the documents will be entered into the record. I will now introduce our witnesses. Our first is bob bauer who is with us remotely. He is a professor of practice and distinguished, scholar in residence at New York University school of law where he codirects the regulatory process clinic. Previously he served as president obama part white House Counsel from 2009 to 2011. An attorney 13, obama elected him as cochair on election administration. He holds an undergraduate from harvard and a logically from the university of virginia. Senator warner. Next up, investor normalizing ambassador normalizing norm. He has written on anticorruption. He served as counsel to the House Judicial Committee and is president obamas expert in reform. He got in the undergraduate in. From harvard next up, jenae nelson who will be remote. She served as counsel of the incident naacp Educational Fund since march 2022. She served earlier in her career she was in associate dean and associate director of the Ronald H Brown center for civil rights and Economic Development at st. John school of law. She holds a bachelor degree from nyu. Senator blunt. Sen. King i want to thank all of our witnesses were being here today. At two and this is im able to introduce. First is mr. John gore, a partner in the government relation practice at jones day in washington where he practices on voting, elections, litigation. His experience includes litigating numerous voting and election cases in 16 different states and at all levels, including the u. S. Supreme court. He. They served as the acting assistant attorney general and for the Civil Rights Division of the u. S. Department of justice from 2017 to 2019. In the role he led the departments enforcement of civil rights laws nationwide. Next we have derek muller, nationally recognized as a scholar in the field of election law. His research is focused on the roles of states and the administration of federal elections, election administration, the limits of judicial power in the domain of elections and Electoral College. As the Bipartisan Group work on their bill, he provided them with expert guidance. I want to thank all of our witnesses for joining us today and look forward to your testimony. Sen. Klobuchar if you would stand and raise your right hand. Do you swear this is the testimony you will give before the committee will be the truth, the whole truth, and nothing but the truth so help you god . I do. Sen. Klobuchar you may all be seated. Mr. Bauer, you are now recognized for your testimony for five minutes. Mr. Bauer thank you very much senator klobuchar, Ranking Member blunt, and rivers of the community. I submitted a full statement for the record. I come as a member at cochair with professor Jack Goldsmith of a Bipartisan Group convened by the American Law Institute to consider the Electoral Reform act. We produced principles that shape my views but i want to emphasize that i am here in my individual capacity. Unlike so many areas of contested political roof reform, there is greed meant across the political and ideological divide that the ec requires revision. Legal scholars have been calling for reform. For most of its history, the statutes weakness have not erected in controversy over a president ial election but those dangers not face us all and reform is clearly and urgently needed. The business of reforming this composes complexities and tradeoffs. The proposal before this committee navigating these difficulties with great effectiveness. They set us on a path that represents bipartisan achievement. The corey haim is to assure the popular judgment rendered on election day under election laws in place is respected and then protected from being cast aside cast aside five political majorities that happen to be in charge of the congress or state legislatures. Under the constitution, state legislatures determine the manner of appointing electors. For those that choose popular elections, congress fixes a date that an election takes place. As a matter of due process, the rules in effect on the day of the election are the ones that must determine the outcome. In our democracy, we do not change the rules of competition after the game is known. In respect state law process. From casting of ballots, canvassing, recount, and processes. It requires states honor those results when transmitted to congress the electors whose votes will be included in the january 6 tally. It also clarifies congresss role which is to receive the certificate so it can have the correct electors boats and not second the popular vote count as tested in election recount and in federal and state litigation. Electoral count reform act shows this can be done without creating any new legal claims or causes of action, merely assuring that when president ial and Vice President ial candidates challenge the lawfulness of certificates that a state legislature or official might send congresss way, those are expedited. The timetable for the resolution of those issues before january 6 requires expeditious resolution. The reform proposal before this committee can also clarify congresss role in the conduct of a joint session proceedings. There are large areas of consensus. Strict limitations on the role of the presiding officer, raising the threshold and charting the nature of permissible rejections, and other mechanisms for the conduct of this constitutional process in which the public can have confidence. The proposals before the committee represent a vast improvement over existing law. There can be no question about that. As i have noted in my written statement and will emerge in the time for questions and answers, there have been calls for clarification and tightening in one respect or another. All merit consideration, some might address concerns about ambiguities and misreadings. But, fortunately, none of those calls for clarification or technical correction go to the basic and effectively designed reform we have in front of us. Thank you very much senator klobuchar, Ranking Member blunt, and rivers of this committee. Sen. Klobuchar next up, mr. Gore. Mr. Gore good morning chair klobuchar, making them are blunt, and the members of this committee. I want to thank the committee for taking up this issue and the reformed electoral act. Im honored to be included in the hearing and i think the committee for inviting me to testify. The electoral count act governs a vital moment in our american democracy, the moment when states pass the baton of president ial elections to congress. The constitution itself describes the role of states and congress in our elections. The electors cause gives state legislatures the authority to direct the manner in which electors are chosen. The constitution says congress has the responsibility to count these electoral votes and certify and ascertain the winner of the presidency and vice presidency. Since 1887, the electoral count act has laid out a procedure for states to certify their electors. It has directed congresss discharge of its duty to collect and compile electoral votes. These dates and congress performed well under the act. Deck contains numerous acts and gaps and ambiguities. Reforming the act is necessary and appropriate. Congress should take the opportunity to safeguard the integrity of our president ial elections now before future disputes arrive. Several of the current shortcomings reflect its silence on judicial review. For example, the current act does not address judicial review in this scenario when a governor fails to certify a slate of electors or certifies the wrong slate of electors. The act does not address how congress should handle a revised certificate issued by a governor under the order of a state or federal court. The bipartisan Electoral Reform act preserves the precedent and practices in our elections that has served states, congress, and the American People for decades. At the same time, the reformed act reform act offers improvements for the benefits of states, congress, and the American People. Four of the main provisions address judicial review and provide the role of courts in adjudicating president ial election disputes. Reform act reiterates that the laws that govern president ial elections are the state laws adopted by state legislatures prior to the election. This provision will help preserve, protect, and promote free and Fair Elections on behalf of all americans. The American People can have faith and confidence in the integrity of our elections only when new rules are set before the election, followed during the election, and are upheld after the election. The reform act is a key millwork i can staffords to change the rules of the game after a president ial election has been held. Second, the reform act leaves states and voters in charge of choosing residential electors as the constitution directs. Accordingly, the reform act preserves existing state laws for contesting were challenging the results of an election. States have adopted a variety of judicial and administrative procedures for adjudicating election disputes. The reform act keeps all of those procedures in place. Third, the reform act addresses and feels a statutory gap by addressing judicial review in this scenario when a governor fails to certify the correct slate of electors. A provision of the reform act during ts that expedited judicial review is available in such cases. Under that provision, federal constitutional or legal challenges brought by a president ial or Vice President ial candidate will be heard by a District Court an expedited basis. Any appeals would go directly to the u. S. Supreme court expedited review. Finally, the reform act fills another statutory gap by addressing how congress should handle revised certificates issued by a governor under the order of a state or federal court. The reform act makes clear that congress will accept such a certificate. This provision modernizes federal law and congresss process for counting electoral votes. I think the committee again for its time and attention on this matter and look forward to the committees questions. Sen. Klobuchar very good. Next up, ambassador eisen. Mr. Eisen thank you chair klobuchar, Ranking Member blunt, and the distinguished members of this committee for inviting me and my colleagues to testify today on the electoral count act and the need for reform and for your bipartisan attention to this critically important questions. The need for reform is profound. The flaws in the eca were on display during the attempted overthrow of the 2020 Election Results, and effort which u. S. District court judge david carter described as a coup in search of a legal theory. As we now know, including the work of the house generally Six Committee house january 6 committee, trump and his allies crafted that flood legal theory that resulted in the insurrection. They exploited the flaws and ambiguities in the eca. January 6 has passed but the danger has not, as this committee will recognizes. Many of those who supported the 2020 coup attempt remain active in the election the now movement. Donald trump has inspired over 100 election tonight and its from coast to coast running for key positions overseeing elections. Several more won primaries just last night. As the vice chair of the house generally Six Committee, liz cheney has warned, this is an ongoing threat, reforming the eca is therefore essential to protect our democracy against future attacks. The ec ra is a significant step forward towards addressing that threat. It represents multiple significant steps forward. The improvements the ec ra makes are not the sole matters that this committee should focus upon. We must ask, does the initial form of the ec ra effectively respond to all the critical weaknesses in the eca that the campaign to overthrow the 2020 election revealed . If not, then it may actually invite unwelcome manipulation. In my view, the committee should focus its attention on improving four key provisions. First, the extraordinary and catastrophic events that would allow for the extension of election day should be better defined. Leaving these terms state law without guardrails prevents any opportunity for mischief by election denying officials who are at risk of proliferating. Second, the federal litigation provision should be further developed. As written, this cant six day window for federal litigation in the ec ra is insufficient. Particularly in the event that governors certify or refuse to certify electors or abuse the process. The meeting day should be back to expand judicial review and the five day notice requirement for convening threejudge panels should be waived altogether. If i may say on this point, it is critically important that governors and other stakeholders in the states, that this senate and Committee People respect the consulted of how the process will work and the complex interactions of state and federal law litigation and offices and processes. Third, to strengthen safeguards around the process once it reaches congress, the committee should consider clarifying the grounds for objection by replacing lawfully certified and regularly given with more precise definitions. Those terms have been a source of abuse in the past. They need to be addressed. Finally, we must provide clear procedural rules for the congressional house so that gaps and ambiguities are not meant to foment chaos. Thank you very much for having me today. Chairwoman klobuchar, wrecking member blunt, thank you for having me today Ranking Member blunt, thank for having me today. My name is eric mother and i am a professor at the university of iowa college of law. These use on my own and do not reflect those of the university or any other organization. My written testimony makes five principal points. Fraud bipartisan consensus is essential to reform the electoral count act to make sure future congresses has confidence to abide by the rules. The reform act of 2022 fits comfortably within congresss constitutional authority. This bill has seven components to handle future disputes. The update for the president ial act are laudable. There are corrections that could improve clarity. I will focus on a few of these points and respond to any questions. In amending statutes like the lateral count act, Congress Must develop mutual rules before any dispute arises in a contested election. That act was enacted with bipartisan consensus. It took too long. Significant problems and 1872 left Unanswered Questions and they remained unanswered head of the contested election of 1876 which through the u. S. Into an election crisis. Even after that, congress could not find consensus until 1887 when democrats and republicans developed a bill they agreed could determine future counting. The electoral count reform act of. 2022 does seven thanks. It clarifies the scope of election day. It abolishes the failure to make a choice provision and substitutes a simple rule. Third, it ensures congress receives timely, accurate electoral appointments from the states. It raises the objection threshold and congress. It clarifies the role of the president of the senate when Congress Counts votes. Six come it and i knew counting rules to define congresss role. Seven, it clarifies the denominator if the candidate has reached the minority the majority. These reforms have their part in the same reforms presented by the committee and other members of the congress. The seven are all goals which were committed developed in the Committee Staff report in january. The mechanisms may differ from proposal to proposal put all serve in the same ends. Im confident the group that fashioned the Electoral Reform act of 2022 owes a debt of gratitude for their work in congress and members of this committee, improving the work that has been done so far. The bill works within the scope of congresss power to fix the times of elections and concluded them, do practice discretion when counting votes. It does not inhibit the states from resolving disputes but requires congress to treat as inclusive the boats that come out of the states. There is wisdom in the approach of the bill and the things that does not do are as important as what it does. In an elected election dispute, the last thing anybody wants is uncertainty. Novel mechanisms may face great and he asked the moment they are most needed at a time when they must service guardrails. The bill does not invite new avenues of litigation that could create tension. It is not offer mechanisms for encountering a congress that means future congresses future challenges. The bill maintains useful, longstanding language for the electoral count act to reduce underserved to reduce uncertainty. At every turn, the bill offers more clarity, more position, and more stability more position, and west ability. It is neither a partisan effort no 8 nor a token partisan effort. While many speak about reform, mechanics matter and securing consensus is not easy. The risks of failing to enact the electoral count reform act are significant. Some have attempted to exploit ambiguities, most significantly in 2020. Toledos in place before the 2024 election is to invite mischief. The bill significantly strengthens several important things. I have been pleased to see such bipartisan consensus and there is little opposition to the heart of the bill. Rare concerns are misunderstandings or technical problems. I look forward to answering any questions you have and thank you for participating today. Sen. Klobuchar thank you very much. Ms. Nelson, remote. Ms. Nelson q very much chair klobuchar and ricky member want and members of the committee. My name is jenae nelson. I join my colleagues in commending the work of this committee and celebrating the unanimity of support on reform of the eca. I thank you for the opportunity to testify on our democracy and on the need to enact responsive and expensive federal legislation that prevents the sabotage of our elections. Sabotage that can happen through discriminatory barriers to the ballot and the manipulation of Election Results in ways that disproportionately target communities of color. Historians will study the. Will study the period between 2020 and 2025 for decades to come as a sick to explain the next century of american life. They will ask the question, did we act when we had the chance or did we squander our last best hope to protect the freedom to vote and save our democracy. The answer to that question lies in part in the absence of this committee. I come before you today to sound a piercing alarm. Longstanding voting discrimination is intensifying at the same time that efforts of election sabotage through manipulation have again come to the foreground. Voters of color face the greatest assault on our. Voting rights since jim crow. U. S. Democracy is in crisis because of a deepseated, irrational, and discriminatory fear of a truly inclusive, multiracial, multiethnic democracy that our nation has never been put our electorate holds the promise to deliver. Those who reject and fear democracy have proven they are willing to sabotage our elections to avoid its fruition and to destroy our democracy in the process. To prevent another january 6 and bring our democracy back the brink, congress act swiftly and expensively to address the full range of these challenges, including rampant voting discrimination that has for centuries imputed impeded the equal voice and power of the voters of color. We also need action to resolve ambiguities and curve opportunities for abuse in the electoral process as the other panelists have explained. Strengthening the electoral count act must be the beginning of this congresss work, but not the end. We are encouraged by the groups progress on the easyr on the ecra. We also believe the eca can be strengthened further. I offer the following principles as a guide. First, a reform should eliminate ambiguities in the law and opportunities for manipulation while preserving voters abilities to exercise the right under judicial law. Second, any the slate of electors for congress to count should be conducted according to established and clearcut length and be fair and unbiased both in fact and appearance. That process must yield a single definitive and final result that is not subject to competing outcomes prior to the meeting of the Electoral College. In addition, this process must not intrude on voters prerogative to seek release against discrimination, undue burdens, or process violation. Finally, we recommend clarifying the cra the ecras language to remove ambiguity that congress is bound to abide by a state court, federal court, for statutory reasons for the judicial review process described in the ecra. My testimony contains more details suggested for the committees consideration, including ways to improve the bipartisan working groups companion legislation so it fulfills its potential as a complement to the ecra. Protections against voting discrimination and voting suppression and protections against election manipulations are distinct yet mutually reinforcing ways to prevent election sabotage. Both are necessary to assure that the voices are increasingly diverse and the electorate is equally heard, counted, and honored. Congress must act now to root out voting discrimination and prevent election subversion. That begins with this committee and i look forward to your questions. Sen. Klobuchar thank you very much, ms. Nelson. I appreciate your testimony and your suggestions. I thought i would start with this Bipartisan Panel of witnesses with just yes or no questions. We know this is complex. Of law. Do you agree it is important for congress to update electoral count act to make sure the will of the voters prevails in elections . Mr. Bauer. Mr. Bauer yes. Sen. Klobuchar mr. Gore. Mr. Gore yes. Sen. Klobuchar mr. Eisen. Mr. Eisen yes. , ms. Nelson. Ms. Nelson yes. Sen. Klobuchar do you agree that the Vice President has no authority to decide which electoral votes to count and do commit to update the lock to make it is clear the Vice President has no authority to reject electoral votes. Mr. Bauer yes. Mr. Gore yes. Mr. Eisen agreed. Mr. Muller yes. Ms. Nelson yes. Sen. Klobuchar it only takes one representative and one senator to force each chamber into a vote a discussion on electoral votes. Do you support raising the threshold to 1 5 of each chamber to sign any objection before it can be debated as suggested . Mr. Bauer . Mr. Bauer yes. Mr. Gore yes. Mr. Eisen yes. Mr. Muller yes. Ms. Nelson yes. Sen. Klobuchar okay. Good. I thought it was important some of our questions will be about details but on the men part of this bill we agree. One area that has received a lot of attention is the role of the federal courts in ensuring state officials comply with their duty to certify electors who reflect the outcome of the election. Mr. Eisen, you have expressed some concern on the judicial review procedures and the timing of them, that there has to be enough timing to resolve the disputes before the Electoral College meets. Can you talk about that briefly and what you think would be helpful . Mr. Eisen you have got to get through briefing, argument, decision, appeal, first with the three court panel and that is Supreme Court. All of this is happening within the context of possible state ongoing proceedings and will put a burden on the governors, the ags, and the secretaries of state engaged. It is not workable to do it in six days. I recognize on one hand for states are going to be pushing for more time and the parliamentarians and all of you and those in the house must handle this are going to be pushing in the opposite direction for enough time to get ready. I think getting it right is sen. Klobuchar getting the time right. Mr. Bauer, do you want to respond to that. Mr. Bauer i dont share the acuteness of his view on this point. I think it is likely for a lawsuit to challenge questionable certifications are likely to arise before the six day period. I dont think it is going to occur at the beginning of the six day period. I think it has been clear over time that courts have the mechanism and recognized the duty to expedite if necessary resolution of these claims. I want to stress again that under the electoral count reform act, we are talking about claims that are very narrowly drawn by president ial adVice President ial candidates to address the apparent submission or refusal to provide a certificate in accordance with state laws. That will focus the courts attention and enable these matters to be dealt with expeditiously. If, in fact, it would help the passage of the bill and it is possible to accommodate those times without pressure on the other end as congers prepares for the joint session, that will be considered. Sen. Klobuchar widespread concern about a provision in the current law that would allow state legislatures to declare a failed election, pointed their own electors. Mr. Bauer, they would be ignoring those in their states. Explain how the bipartisan bill solve this problem. Mr. Bauer it solves this problem very effectively by providing that states may pursuant according to laws before election day may determine the catastrophic event events that could necessitate a in voting. The remedy is a modification in the period of voting. It is not allow the states to use the excuse and that was what was most concerned under the current eca to redo the election. To throw the old one out and to anyone. I think it addresses the concerns we have over legitimate problems that may arrive with cyber attacks, power outages, natural disasters. It requires us to honor the elections that reflect the popular vote. Sen. Klobuchar investor, you should concerned that the language in the bipartisan bill allowing states to extend election date during a cap traffic during a catastrophic emergency is a vague. I am glad that they have an exception. You can have weather catastrophes, right . Did you have anything you can suggest you think would make this more defined . Mr. Muller if this committee were solely in charge of administering extraordinary the anxiety mavis feel and looking at the election denying landscape and brazenness and willingness to go to the very limits, that alarm would not occur. Mr. Eisen given that congress has defined this term, you can put guardrails around that. Particularly if there is a trifecta, if they have both houses. Sen. Klobuchar could you use any specific language . Mr. Eisen the guardrails can force majeure. Sen. Klobuchar ms. Nelson, he testified reforming the electoral count act is only one step in transforming our democracy. Can you speak to why additional legislation like the freedom to vote act and the john lewis bill would complement the work we have done here . Ms. Nelson yes. Because election sabotage happens not just after ballots are cast and the votes are tabulated, it can happen in the way that electorate is shaped through voter oppression laws and through laws that erect barriers to the ballot. The john lewis of voting advancement act is critical to strengthening protection against voting discrimination we lost in the Voting Rights act of 1965 when the Supreme Court struck down the provision and disabled it. We also need the freedom to vote act to set minimum standard for access to the polls so voters and in florida and georgia and texas can benefit from sameday voter registration, for example, or robust vote by mail just like voters in california and colorado and other states. The uniformity of those voting measures will restore and bring greater confidence to our electoral system and will complement the work of the ecra. Sen. Klobuchar mr. Blunt. Sen. Blunt mr. Gore, professor muller, and professor bauer, you highlighted the importance of the bill clarifying that states must use laws enacted before election day. Let me put two or three thoughts out there and you can all respond to this. What potential problems were that provision solve would that provision solve . How does that help maintain the integrity of elections . Does it still up the rights of states to actually craft their own laws regarding elections . Lets start with mr. Gore in front of me. Mr. Gore that is a key provision of the reform act because it leaves people in the state legislature in charge of prescribing the rules for president ial elections as the constitution directs. It would prevent efforts to change the election after the game has been played. It is a fundamental premise of our elections that they are held in a free and fair manner under rules set in advance followed during the election and not changed after. The reform act is a creek is a key provision that would prevent efforts to change the rules after votes have been cast and compiled. It would leave the state legislatures in charge of setting those rules as the constitution directs and would empower state legislatures to settle those rules in a manner they deemed in each of the ritual state. Sen. Klobuchar sen. Blunt mr. Muller. Mr. Muller the goal is that there is one election day, the first tuesday after the first monday and in november. All the rules will be in place and we will issue to them. There were concerns that arose in 2020 that legislatures could show up in december or january and appoint a slate of legislatures point is that of electors. This was a problem in 1876 as well. Making sure we have stable rules upfront, we are having a popular election and all of those rules will govern the recount and other processes that happen after election day is crucial to ensure the votes and the voices of the people will be represented. Sen. Blunt mr. Bauer . Mr. Bauer i associate with the comments just made. I think this is a crucial part of electoral count act reform. Congress fixes the date under the constitution of the election. Due process requires that Congressional Authority be respected and state legislatures do not attempt after the fact to change the rules in place under which the voters relied. It is essential for that recent within our constitutional framework and the additional points relayed by easter gore and mr. Muller. Sen. Blunt mr. Eisen, does anything in the bipartisan proposal displays any of the existing federal or state claims that are available . It seems like there are plenty of places to go to court and to challenge problems that, perceived or real, immediately after the election day itself. Is there anything that prevents all of those options from continuing to be available . Mr. Eisen the options to remain available. The options do remain available. I will note that at the end of the six day period, in order that the certificate have binding effect in congress, the subsequent state work judicial relief this is in 5. C. 1 in order for that to have effect, it will cut off the state review. We are establishing a cutoff here. I know there is some concern by those who have to administer this that with the length of that period. That is why we would like to have more time in order that state and federal procedures can run their course. Sen. Blunt easter gore, to think more time is a helpful thing mr. Gore, do you think more time is a helpful thing . Mr. Gore i dont believe wartime is necessary to allow the courts to adjudicate disputes and 80 future for several reasons. The reform act preserves procedures for adjudicating those disputes. The federal suit would be filed in most cases after a state process has already played out. Second, it will be an unlikely case that it will be resolved in six days. Most states certify the results of elections before the six day period began. In 2020, delaware certified its Election Results on november 18 before the Electoral College convened. Third, the issues presented in any kind of federal suit would be narrow. It would only be if the governor failed to certified the correct slate of electors as required by state law in existence prior to election day. Fourth, the states the courts have proven adept at adjudicating these disputes in a quick manner. That includes not just estate courts, but also federal courts including the u. S. Supreme court which in many cases has resulted election disputes quickly. Sen. Blunt thank you, chairman. I may have other questions later. We have a number of members, lets move on. Sen. Klobuchar senator warren. Sen. Warren thank you, chair klobuchar, and senator blunt. Thank you for giving this some time. I know this is not the popular perception but we have had a good run of bipartisan work in descendant. There was the chips bill, a group that came together come on the gun legislation, the budget, the bill passed yesterday and now the cra. I know this is not popularly held by the public but there are a group of reasonable senators from both parties that try to get to yes. Why we while we are on the electoral count act, there was work done by this group on postal reform, making sure absentee ballots would be counted in the appropriate way, that there would not be changes before an election in a properly by in the postmaster general. I urge the committee to look at those. We did good work on efforts around Voting Machines. For example, we have a long making sure Voting Machines to accurate counts. We also have a law that Voting Machines can withstand and from little challenges. One of the things we have not done is making sure we have security standards, cybersecurity standards. Senator blunt and i and senator king are on the intelligence committee. We have seen efforts in the past to use several attacks on our voting systems and put in a voluntary cyber standard puts makes an enormous amount of sense. I want to complement professor muller. You have a series of technical amendments to the legislation we put together. I think all four of your amendments improve the build and clarify some of the misreadings. While i will not get my chance to go through all of them, and more adept Committee Member may address those. I just want to say that his improvements get my support. I dont want to speak for senator collins and senator manchin but i have run it by them as well. I want to get to a question. That is to mr. Bauer. I want to thank you and your colleague Jack Goldsmith and the other law professors for your help in drafting the ecra. One of the things we wrestled with the most was determining the role the federal courts might have in resolving a disputed election. Some of the commentary out there frankly is offbase and one of the reasons i think professor mullers corrections make sense. If we could go through a letting round a lightning round, does the ecra create a new cause of action . Mr. Muller no it is not. Sen. Warner does expand the jurisdiction of the jurisdiction of federal courts . Mr. Muller no it only provides for expedited reviews. Sen. Warner does the ecra diminish the power of state courts . Mr. Muller no, it does not. Sen. Warner you said the ecra clarifies the role of federal courts under existing federal law. We spent a lot of time going back and forth on this and have lots of good work. Can you describe that role of the federal courts in this process . Mr. Muller the point i was making was that it is sort of claim we are talking about that might be brought by a candidate challenging the lawfulness of a certificate a Legislature Might put forward is in action that can be brought today under extent law. The electoral count reform act does quite effectively is simply provide on this unforgiving timetable for expedited review and establishes venues and procedures for review, review by a prejudge court, and review by the u. S. Supreme court. It does not alter existing laws. It is not created a new causes of action. It is a procedural provision to allow this narrow kind of claim rocked by these plaintiffs to receive expedited treatment. Sen. Warner and that is the position not only of you but mr. Goldsmith and the law professors who worked with the group . Mr. Muller to my knowledge, of course speaking for myself, the answer is yes. I know of nobody who argued to the contrary. Sen. Warner there was probably no issue we spent more time on. I think some of the critiques may have been misguided. I have a bunch of books in my office and i would go through those corrections. If there were any ambiguities i think the chair and Ranking Member for getting this gang a chance to do some work and would welcome other gang members in future endeavors. We dont have gangs, we have Bipartisan Groups. Sen. Warner the gang tats, we should not show those off . Sen. Klobuchar i am not getting into this one. I want to thank senator warner and everybody in this committee. I am going to make a statement and with time i have left i hope i have time to ask questions. I want to thank the witnesses for being here today and the lending of your expertise in this process. We did labor on the best way and i am encouraged by what i hear. I would like to submit letters of support from the institute which is in support of the reform effort. One of the most important duties of congress is to certify the winner of residential elections. It is not our job to adjudicate cast ballots. We support the election system which supports the power of the states to tailor the needs of their assistance of their citizens. We must respect the role of the states and not abuse our oversight powers which i think this bill lends out. I am proud to join 15 of my colleagues from both sides of the aisle for deducing the electoral count reform and the transition improvement act. This legislation is the only bipartisan bill that would amend the electoral count act of 1887. Anyway six was a dark day for our compact for our capital and democracy. The politicization has been a problem for decades, predating the most recent certification. Members of congress objected to certified electoral results as a means of changing political outcomes that they dont like. Despite then george bushs clear win over senator john kerry, the concurrence with several house members forced a vote in both chambers over whether to overturn ohios electoral results. Because of the rules set by the electoral count act and a singlemember, and i am glad we all believe that is a flawed proposition, senator barbara boxers objections forced congress to deliberate on the popular vote in the state of ohio. This resulted in a vote of 174 in descendantin descendant. In the senate. A single senator had listens to sign objections, we would have been required to vote on these frivolous changes. This sentence demonstrates a clear need for reform in this certification. Over the course of seven months, we have worked on this and i am proud we have put together a package that could use improvements as we have talked about but also hits at the core issues. The legislation resolves efforts to subvert our law in president ial elections and clarifies guidelines clarity is the word of the day, clarity is what we have been missing. It is not a partisan power grab or to use congressional powers to dictate what outcomes a party might prefer. These legislative reforms offer a commonsense solution to a recurring problem. In consultation with many of you, im hoping this bill can gain support to pass both chambers and be signed. Into law. And be signed into law. I feel, quite honestly i dont know what the chair feels about this we have a sense of urgency here. As soon as we turned the corner into january or into another lengthy twoyear president ial election, my personal feeling is we need to button this up before the end of the year. That will set the clarity to move forward for this next election. So i know i might get the answer that none of you think that you can Tell Congress on they should and how they should pass things but since you are here in your personal capacities i would like to know if you have an opinion on the urgency to get this wrapped up by the end of the year. Mr. Gore, ill start with you. Mr. Gore thank you, senator. I presume to Tell Congress but i certainly agree now is the time to act. It is a beneficial piece of legislation. Its pending before the congress now and the moment is here for congress to act. I would like to say its a personal privilege i enjoyed visiting you when you were the ambassador. Inc. You for your hospitality. Mr. Eisen i was thinking back to the bipartisan time we had, i think it is urgent. We must seize the moment but you must seize it correctly. I know no one feels more strongly than you do, senator. Taking into account the need of the state officials who actually are going to have to deal with all this. They need more time. Mr. Muller . Mr. Muller these are the deadlines, this is what your test result this is when the certification takes place there is so much that has to happen behind the scenes in the 50 states. The more time we give our hardworking election officials, the better. Think you, mr. Bauer . Mr. Bauer i could not agree more that it is urgent. I think it would be good to see congress act before the president ial election cycle begins. Thank you, and is nelson . Ms. Nelson i concur with my colleagues. This is urgent reform that is needed and by congress advancing this as soon as possible it frees congress up to do more to protect our elections. Thank you, madam chair . I strongly agree with you. Next up, senator king. I dont think we have anyone else but senator beria has been patiently waiting. I want to raise an issue that has not been discussed. All of you asserted this was constitutional, that the ecra was constitutional. I am worried about the implications of the socalled independently justly true theory. The theory basically holds that there is a difference, there is a subtle difference between the election clauses in article one and the election because in article two. Article one says legislatures set state election roles but; congress may amend or override those rules. It talks about the states shall select electors in a matter the legislature shall direct there is no provision for congressional expressed provision as there is in article one. There are those who assert and apparently we now have three justices, thomas, alito, and gorsuch who appear to accept this theory that nothing can override and they can do anything they want whenever they want. Mr. Bauer, let me start with you since you are a graduate of the same law school that i am. I will give you the privilege of beginning. What do you think of this theory and is this a concern in the context of what we are discussing her today . Mr. Bauer i dont believe it is. There has been a lot of different meanings to the term but i think one thing is very clear, which is whatever state legislatures may do in appointing electors they cannot violate other constitutional provisions. They are still faced with the requirements of their actions. With the right to vote under the first amendment, so there are constraints and i dont think in the most extreme form somebody might subject that one might understand i dont think that would be an accurate statement of what is available under our constitution. Mr. Muller . Mr. Muller if congress has the power to determine the choosing of electors by eliminating the failed to make a provision and setting all of the rules in place as of election day than a pits in place that if youre going to hold a popular election we are going to follow those rules are there is no opportunity to show up late or do something else. There might be in the most grand high theory of the independent state legislature to say a legislature can do whatever he wants perhaps thats true, but it has to do it on the first tuesday of november and there has to be laws in place before the election. So the power and the congress to set the date is a constraint on the legislature acting richer actively . Mr. Muller correct. Thats reassuring. Mr. Gore do you agree . Mr. Gore i do agree that the doctrine is not implicated by the format. I agree with professor ahlers muller. The governing law for president ial election is state law enacted by state Legislature Prior to election day. Further delays any concerns there might be under that doctrine. Do you feel that the Electoral Reform act adequately deals with the rogue governor problem of a governor who refuses to certify . Because we have people for any for governor who say i wouldnt have certified in 2020 is that addressed . That is something we try to address in our draft bill. Mr. Gore . Mr. Muller mr. Gore failing to certify a slate of electors or certifying the incorrect slate of electors as i mentioned before state laws have procedures for adjudicating election disputes including that kind of dispute. The format does not displace any of that it preserves all of the processes and procedures do you think the procedures are adequate and the format doesnt need to address . Mr. Gore i think it does not need to address the subject because there are legal remedies in place at the state level and to the extent there are also federal constitutional challenges that could be brought. Do you agree with that mr. Bauer . That the rogue governor issue is adequately dealt with in existing law . Does it need to be addressed . Mr. Bauer i think there are remedies available under existing law but i would also point out that it is effectively dressed in a procedural matter to expect i. The Vice President candidate can bring to challenge or state legislature properly puts forward the correct one. So it doesnt test on that certainly by expediting relief available under existing law. Mr. Muller, one final question. Voting. Potentially modified by quote catastrophic events is that adequately, is that an adequate definition . Do you feel that provides reasonable guidance that can be litigated or does it create an opening and an ambiguity . Mr. Muller first we have to think about the status quo which right now is the electric can do whatever they want. By abolishing that its an improvement. The only remedy that can happen is a modification of the voting. Not suspending or delaying the election. What if the justly dresses we had widespread fraud, we have to throw out the results . Mr. Muller extraordinary and catastrophic are understood to include allegations of voter fraud. I think it would prohibit states from enacting laws like that. States already have emergency election laws on the books. To my knowledge none of them define voter fraud as a basis for an emergency implication of executive authority. So it offers an independent restraint while enabling state mechanisms for handling catastrophes. Are you satisfied with extraordinary and catastrophic . I think it is another issue that is best left to the states to decide again before election day for the reasons that professor muller laid out. Thank, madam chair . Thank you senator padilla. Going back and forth to judiciary committee, same day same time. Now, think the three of you for your testimony. And our two witnesses. I agree that it is critical that we modernize and clarify electoral count act and im grateful for the Bipartisan Group of senators that have come together to work on this issue. I do have some questions for a moment, i think it is also important for this committee and for this hearing to focus on two other related points about the electoral count act reform. The ambiguous text of the current act exploitation on january 6. The text didnt exploit itself. People did. The former president did. Senators, members of congress did. And an armory army of warriors ready to give up on our democracy to give into the big lie and used it to fuel a basis challenge to the 2020 election. So while fixing the eca is important i think it is also important to remember why we need to do so in the first place. Because badfaith actors stand aiding in the wings to try again to exploit the text again. For their own cynical and ends. Second fixing the eca want to anything to remedy the significant barriers to access that far too many voters across the country continue to face. Fixing the ec might make it we should absolutely do that. But i hope that we can find our way back to making it easier to vote. I first question is for ms. Nelson. And as shes participating virtually but let me ask ms. Nelson to elaborate on the second point i just rate raised. Barriers to access that voters across the country will continue to face regardless of whether or not we reform the Electoral College . Ms. Nelson yes, thank you senator. As i said both orally and in written sabotage sabotage is not once a ballot is because it is also determined by who gets to cast a ballot in the first place and under what conditions. We know that voter discrimination and Voter Suppression is still rampant in our electoral system. We know there has been hundreds of bills proposed and passed in states across the country that limit access to the ballot and that particularly have a disproportionate impact or directly target black and brown and other marginalized voters. What the Electoral Reform act will do is to resolve many of the ambiguities concerning how votes are counted and what certifies an election and ascertainment in so many ways that exploitation might occur. But it doesnt deal with the process of who gets to vote and under what conditions. That is why it must be complemented by legislation that protects the right to vote and assures the Voting Rights act to capacity increase uniform standards across the country for voters that cannot be manipulated or in any way disco needed against based on race or another protected characteristic. Thank you very much. My second question is more of a speed run for all the witnesses. The Bipartisan Group of senators made an effort to address some of the vulnerabilities of the currently cap i appreciate their work that the bill takes. The likelihood that the law can be exploited again, as it was on january 6. But the committee. You can take a second, senator. We are all in a good meet here today. The committee has jurisdiction on elections. I would like to hear just briefly from each of you we know whats in the bill. Is there anything else that you wish to address with this committee to make it even better . Will start with mr. Gore. Mr. Gore thank you, senator i do believe some of the technical corrections suggested in the bill by professor muller and others are appropriate. Backandforth earlier about the time. For bringing challenges under the reform act with her six days is sufficient. I do believe that the five day notice provision for actions brought before a court involving a state officer or state official should be waived for these cancer cases is to ensure there is as much time as possible to resolve any federal constitutional or statutory claim. Thank you, senator. I think extraordinary and catastrophic should be defined. I think the timing should be extended. We still have states with litigation going in 2020 after the socalled state harbor and after the Electoral College met. I think lawfully certified and regularly given needs to be defined better to prevent mischief here in congress and in my testimony i laid out some procedural specifications that i think is important to put in. If you call those clarifications and technical corrections, im all for it. And i do appreciate the huge bipartisan effort. Mr. Muller . Mr. Muller the recommendations up it in my written testimony. Thank you very much. Mr. Bauer . Mr. Bauer i do not think there is a gaping hole in the statute. I think there are corrections that i understand professor muller has advanced. It could well be an order and could help to secure answer questions insecure bipartisan passage. I would contract that with any glaring weakness in the design at a think there is any glaring weakness in design. It seems to me they are appropriately considered. Thank you. Ms. Nelson . Ms. Nelson principles that guide the consideration of any tweaks to the ecra but i will Say Something more specific, i will state the more specific recommendations. The timing, while we are not promoting a particular time. Or expansion for litigation but rather consider what needs to happen within that time. That we urge the committee to think about some expansion of time for litigation and to ensure there arent any unintended consequences. We also raised some issues concerning the assignment of judges for the judicial process to ensure that there is no actual and more certainly no appearance of bias that may undermine Public Confidence in the process. We also believe that the right to a mandatory appeal to the Supreme Court is something that this panel should consider and think about ensuring the Supreme Court review of these issues when they arise through the process. Then also to make it very clear that the process does not supersede any state or federal court avenues. I think we articulated that several times in this discussion today but i want to reiterate that point because its very important that voters have an opportunity to vindicate the rights under state and federal laws. Thank you, thank you all. Good questions senator padilla. Senator cruz . Thank you to each of the witnesses. Professor muller, article two section one because three of the constitution provides that the president of the senate shall open all the certificates and the votes shall then be counted. The 12 amendment likewise provides the very same text the president of the senate shall and the president of the senate and open and the votes shall be counted. Why in your judgment do you believe the framers gave that responsibility to the president of the senate and the house and senate . Thank you, senator. So i think in terms of considering the separation of powers, there was understandably the goal of not to have congress choose the president. But there also had to be some resolution of who was the president. Some determination of the counting and i think as far as i recall from debate in the convention the notion would largely be it ministerial task. It was not something that was on the minds of the convention. It was recognized. There was going to have to be actors who were involved. By the time that what the amendment was enacted it fell to the presiding officer of this joint session which was the president of the senate to handle the tasks. Congress counted the votes and it wasnt until made 19thcentury that we started to have real problems about resolving those disputes. At the very least to the extent congress, this federal body that would typically handle political questions for its on members, it seems like an appropriate analog but to the extent there were dispute about the election. It would handle them in that joint session together. Do you believe there was any judgment or discretion expected of either congress or the Vice President in that process . In my judgment there was no discretion for the Vice President. The president of the senate, there was suggestion in the debate that happened in congress in 1800 that there might have to be some questions about what happens during the counting of electoral votes. Thats been a pretty narrowly defined role and especially over the years do we stress trust to resolve the process . So it has had a role recognized a role in the past but a narrow one when it comes to resolving those controversies that come to congress. So is everyone here knows, the election of 2020 was extraordinary in many respects. As i analyzed with the best approach for congress should be to that situation, i looked to history and i looked to the present. To my mind, the most applicable president is the election of 1876. As you know the election of 1876 that was the race between Rutherford B Hayes and tilden. And much like 2020 that was a hotly contested race. There was serious disagreements and in particular there were serious allegations of voter fraud. From three different states, florida, louisiana, and south carolina. A total four states, florida, south carolina, louisiana and congress exercising what you just described is a judgment in discretion given by the framers had to resolve what to do in that instance. In 1876 congress didnt throw its hands in the air and said there are serious allegations of voter fraud but we are helpless, we heard simply clerks so we can assess this. Instead congress did some thing very different. Congress said you know they appointed what is called an Election Commission. The Election Commission was a unique creature in constitutional law and in our nations electoral history. It consisted of five senators, five house members, f5 Supreme Court justices. And that of Election Commission was empowered to assess the evidence of voter fraud. To make a conclusive determinations that in turn would go forward and determine who would be the next president. Do you believe congress made the right decision in 1876 establishing the commission to assess the claims of voter fraud . Very hard question. I think in that era there was no electoral count act. Congress didnt know how to resolve the dispute between the chambers which was going to arise. So this was their tiebreaking mechanism, to create this commission. At the end of the day, the commission said, it actually concluded that it would not in its purview to go behind to investigate the alleged fraud that happened in places like florida the goal was to say what is the true result that comes out of the state . And after that, congress enacted the electoral count act and has abided by it every four years and on january 3 with unanimous consent the concurring resolution from congress we are going to abide by these procedures. My judgment that is a much more sensible approach. 1876 was not the best approach and it was the approach that should have guided what congress was doing january 6, 2021. I agree it was the predicate for the electoral count act and attempting to codify a process for dealing with disputed elections. I continue to believe it would have been a better approach for congress in the 2020 collection to have followed the president from 1876 and to appoint an Election Commission. There are large percentage of americans who still have deep doubts about the election. It would behoove both parties to have serious examination on the merits of the facts of those claims. Congress didnt go down that role and one of the consequences is we continue to have deep divisions in this country. Ok, inky senator cruz and thank you for allowing senator padilla to go first. I am not a big fan of the 1876 election per i would not have been able to vote for one thing. I think im going to you are in a life then. Thats true but im try to put it in, you know. A bit of perspective. Im going to fast forward to the present and just as senator crane some questions this has been productive. A thoughtful hearing good questions on everyones part. Mr. Gore, some experts argued that because of bipartisan bills described the governors certification of electoral votes as conclusive a court could not review evidence of the governors certification. Do you agree that state federal courts could review feet governor certification and any court orders amending should be conclusive when Congress Counts electoral votes . Yes. Ok do you want to say anything more . Ill be happy to elaborate. Those mechanisms do exist as i mentioned before. Conducted judicial review of governors action or inaction with respect to a certificate. The reform act modernizes that practice by creating the expedited federal provision and also clarifying that congress will accept a revised certificate issued under the order of a state or federal court. Ok, thank you, mr. Bauer do you agree with that . Yes, i do. Ok. Ambassador, you expressed concern that mandatory appeal of election related claims from a threejudge Panel Directly to the Supreme Court could force the court to decide cases that it would just otherwise not take up. Can you elaborate on why you think that mandatory Supreme Court review could be problematic . Reasonable minds can disagree as as you see on this committee. I wish every american could see both what goes on on this committee and the bipartisan start that we have here. Its up to the committee to move it forward. I think reasonable minds can disagree on the mandatory requirement for appeal. I know some feel very strongly about this. The case for mandatory appeal, it includes having the closure of the Supreme Court resolving things, not letting it linger on the docket. Those who feel otherwise believe that there is an adequate judicial review mechanism here and as is typically the case with the Supreme Court its for them to decide whether to grant it or not so i think this is one , as we work through all of the necessary it boils down to what we had to have to have feel really good about the bipartisan compromise. This is one where folks see it both ways. Ok. Mr. Muller, he said most cases related to president ial elections with her or not the Supreme Court is disk russian airy but not impact whether it rules and cases can you elaborate on why you think that . Mandatory appeals is a little confusing. First off the party has to appeal. From a threejudge panel which already happens in Campaign Finance cases the Supreme Court cant refuse to adjudicate the case on the merits. If it has jurisdiction but it can affirm, which it does, just merrily affirm and that functions much like the court refusing to grant or says. Just as they would grant or hear the appeal that comes from threejudge panel. There is very little difference in how the Supreme Court is going to handle these matters regardless of the mechanism. Ms. Nelson, we heard some concern that the process for assigning judges which is usually done by chief judge of the Circuit Court it might lead to partisan bias. Do you agree that random assignment of judges to threejudge panels involving president ial elections would reduce the risk or at least the perception of partisan decisionmaking . Yes the emphasis is really on the procession. The controversies are highly font and to ensure there is confidence in the outcome of the results. A random selection would eliminate any sense that there has been a finger placed on the scale in favor of one party or the other and this is not to suggest federal judges are in any way automatically biased by the party or the president who nominated them but rather to just remove any doubt from the process when we are dealing with such a consequential dispute. Mr. Gore, do you want to respond at all . With respect to the appointment of threejudge courts, for redistricting cases that is already handled by the chief justice of the Circuit Court and there is no implication its done in a way that is unfair or biased. I think the mechanisms decision for these cases as well. Anyone else want to chime in . Mr. Eisen . Assignment perhaps not everyone on the panel hasnt equally happy reaction to recent redistricting jurisprudence. There can be some flexibility that might be beneficial if a judge from alaska is randomly assigned a case happening in phoenix in a very short span its not a hearing on zoom there can be some logistical problems. Again, thats an issue to think about. I think thats a good way to end because people are being very practical which i appreciate. We have had witnesses that come from different political perspectives just like this committee has come together on a number of issues and just like the Bipartisan Group. So i want to first of all thank my friend senator blunt and the members of the committee for an incredibly productive hearing. I want to think senators and mention for their work for bringing a group together i want to think senator king who has been on this issue from the very beginning. And the two of us worked together on it and has expertise on this i think we wouldnt be where we are without him. I want to think think senator warren and we heard about the ambiguous provisions in that old 1877 law that we are actually it was exploited. You can use more dramatic words but exploited in the last election and underscored the need to update the antiquated law and i also think its just a recipe for future problems as people have now contemplated. How we can mess around with it in various ways including kind of practically delay objecting to multiple states. I dont think im telling anyone a secret. They can go on and on and centered flat and i before the insurrection contemplated in the range of 24 hours but it could even go longer and to see if any of those senators just kind of, you know, get sick or something. Cant be there, you start having all kinds of issues come up and thats why i think practically looking at it no matter where you come from politically, there needs to be changes. We heard bipartisan agreement that we need to reform the electoral count act to secure a peaceful transfer of power. We talked today about the role of the Vice President , which cannot be used to overturn the will of the people. We talked about how you can certify and make sure the actual electors and not something that is added fraudulently at the end and we talked about this appeals process and how we can get that set so that makes sense. And i appreciate it, again, the work on this bill to provide muchneeded clarity to the electoral count act and i would just add with ms. Nelson there, in the distance on the screen, there are a number of us that are still devoted to putting some sensible federal rules into place to make it easier for people to vote because thats what we should be doing in a democracy. The hearing act, senator blunt do you have anything to say here at the end . I do think we need to move forward with the clarifications that are so obviously needed. I think uniformly accepted here. Certainly, the suggestions today about technical corrections and other suggestions are going to be helpful in that but this is clearly something that we shouldnt let it carry over into another election cycle and get this done this year. I look forward to working with you and the rest of the committee to mark up a bill and get it to the floor and get it passed. K. Good. All right, thats it. The hearing record will remain open for one week because we are speedy. We are adjourned. It couldnt have gone better. Thank you, everyone. [indistinct background conversations. ] cspan has unfiltered coverage of the house january 6 Committee Hearing investigating the attack on the capital. Go to cspan. Org january 6 to watch the latest videos of the hearing, briefings and all of our coverage on the attack and subsequent investigation since january 6, 2021. We also have a reaction from members of congress. Go to cspan. 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