Transcripts For CSPAN3 Sens. Joe Manchin Susan Collins Testify On Electoral Count Act 20220913

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 and save our democracy. The answer to the question lies in part in the actions of this committee. And so i come before you today to sound a piercing alarm. Longstanding voting discrimination is intensifying. At the same time that efforts at election sabotage through manipulation have again come to the accompanied by the normalization of political violence. Voters of color face the greatest assault on our Voting Rights since jim crow. U. S. Democracy is in crisis. Because of a deep seated irrational and discriminatory fear of the truly inclusive multi racial, multi ethnic democracy that our nation has never been but our increasingly diverse electorate holds the promise to deliver. Those who reject in a fear that vision of democracy have proven that they are willing to sabotage our elections to avoid its fruition. And to destroy our democracy in the process. To prevent another january 6th and to bring our democracy back from the brink, Congress Must act swiftly and expansively to address the full range of these challenges. Including rampant voting discrimination that has for centuries impeded the equal voice and power of voters of color. We also need urgent action to resolve ambiguities and curb opportunities for abuse in the electoral process. As the other panelists have explained. In other words, strengthening the electoral count act must be the start of this committees and this congresss work but not the end. We are encouraged by and commend the bipartisan working groups thoughtful progress in the east sierra. For all the reasons ive noted. Shoring up the eca is both a democracy issue and a Racial Justice issue. We also believe the eca can be strengthened further and i offer the following principles as a guide. First, any reform should eliminate both ambiguities in the law and opportunities for manipulation while preserving voters ability to enforce their rights under distant law. Any judicial process to determine the official slate of president ial electors for congress to count should be conducted according to established and clear guidelines. And be fair and unbiased. Both in fact and in appearance. That process must yield a single definitive of 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 relief against discrimination or due process violations. In state or federal court. Finally, we recommend clarifying the series language there is no ambiguity that congress is conclusively bound by an ascertainment provides by a state court, federal court, statutory or constitutional reasons. Or the particular federal judiciary process described in the cra. Written testimony contains more detailed suggestions for this committees considerations. Including ways to improve the bipartisan working groups companion or justly shun so that it fulfills its potential as a compliment the cra. At bottom however is this most important point. Protections against Voter Suppression and protection against election manipulation and subversion are distinct yet mutually reinforcing ways to prevent election sabotage. And both are necessary to ensure that the votes and voices that are increasingly diverse electorate are equally heard counted and honored. Congress must act now to root out voting this from a nation and prevent election subversion. That all important work begins with this committee and i look forward to your questions. Thank you very much, miss nelson, appreciate testimony and the spirit of your suggestions which i feel the vibe from all of our witnesses. That we want to move on this. So i thought id start with this Bipartisan Panel of witnesses just with yes no questions. Quick, we know this is complex area of law and we all want to get it right. Do you agree that its important for congress to update the electoral count act to ensure that the will of the voters prevails in president ial elections, whatever that will maybe. Mr. Bauer. Absolutely, yes. Mr. . Gore yes. Mr. Eisen . Yes. Mr. Mueller . Yes. Thank you, and then last up is nelson. Yes. Okay. Do you agree that under existing law, the Vice President has no authority to decide which electoral votes to count and do you support efforts to update the law to make it Crystal Clear that the Vice President has no authority to accept or reject electoral votes . Mr. Bauer . Yes. Gore . Yes. Eisen . Agreed. Mueller . Yes. Miss nelson . Yes. Last, under existing law it only takes one representative and one senator to force each chamber to debate and vote on an objection to a states electoral votes. Do you support raising the threshold for these objections to require suggested in this bill the one fifth of the chamber to sign an objection the for a can be debated as suggested in the bipartisan bill, mr. Bauer . Yes. Gore . Yes. Eisen . Yes. Mueller . Yes. Miss nelson . Yes. Okay. Thats a first. All right, good. I just thought it was really important as we look at even some of our questions will be about details that we agree that on the main parts of this bill there is a agreement and we can always make improvements. And im sure theyll be discussions about that. One area thats received a lot of tension is a role of the federal courts and ensuring state officials comply with their federal duty to certify electors who reflect the outcome, of the election. Mr. Eisen, briefly, youve expressed some concern on the judicial review procedures. And at 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 very briefly . What you think would be helpful . In the sixday window, yves got to get through a briefing, argument, decision, appeal, for us with the three quarter panel, then with the Supreme Court. All of this is happening in the context of possible state ongoing proceedings and it will put a burden on the governors, the ags the secretaries of state who are engaged. It simply is not workable to do it in six days. I recognize that on the one hand, the states are going to be pushing for more time and on the other hand, the parliamentarians and all of you and those in the house who must handle this are going to want pushing in the opposite direction for enough time to get ready. But i think getting it right that seems like something. Okay, mr. Bauer, you want to respond to that . Yes, i dont share the acuteness of norms expressed concerns on this point. I think first of, all it is very likely that lawsuits to challenge if you will questionable certifications are likely to arise well before that 60 period. I dont think its going to occur right at the beginning of the sixday period. Also i think it has been clear overtime that courts have the mechanism and recognize the duty to expedite as necessary the resolution of these claims and. Thirdly i do want to stress again that under the electoral count reform act. Were talking about claims that are very narrowly drawn. Brought by president ial advice, president ial candidates to address the apparent submission or refusal to provide a certificate in accordance with state laws. I think that again, that will focus the course attention and enable these matters to be addressed expeditiously. Even within a sixday period. If, in fact, it would help the passage of the bill to add a few days. It will that will certainly be considered. Widespread concern about a provision in the current law. The current law that would allow state legislatures to declare a failed election and appoint their own electors. Mr. Bauer can you appointing their own election but ignoring the votes in their states. Mr. Bauer, quickly explain how the bipartisan bill solves this problem . It solves this problem in my view very effectively. By providing that states may pursuant to determine that extraordinary and catastrophic events that couldve necessitate a modification in a period of voting. And thats key. The remedy here is a modification in the period of voting. It does not allow the states to use the excuse and thats what was most of the concern about the failed election provision under the current eca to redo the election. To throw the old one out and conduct another one. I think it very effectively addresses the concerns that we have over legitimate problems that may arise with cyberattacks Power Outages natural disasters while at the same time preserving this fundamental principle that laws that due process requires us to honor the results of elections that reflect the popular vote under the rules in effect on election day. Ambassador, youve expressed some concern that the language in the bipartisan bills allowing states to extend election day during an extraordinary and catastrophic emergency is vague. Im glad that they had an exception. Something we had in our bill. And presented for these catastrophes. You can have weather catastrophes. Do you have anything you can suggest that you think could make this more defined . Chairwoman, if this committee were in charge solely in charge of the administering extraordinary and catastrophic. The anxiety that many of us feel in looking at the election denier landscape and the brazenness and the willing to go to the very very limits that alarm would not occur but i think given that congress has to find this term extraordinary and catastrophic, you can put some guardrails around that to prevent the bizarre idea which can be done, before election day by an election tonight governor, particularly if there is a trifecta. If they have both houses if you could just be any specific language. The guardrails can be forsman short. That would be one. I have one last question. Miss nelson. You testified that reforming the electoral count act assembly one step in protecting our democracy. I know you like to see some changes we can go over those later. But could you speak to why additional legislation like the freedom to vote act and john lewis bill would complement the work that weve done here . Miss nelson . Yes, because elections sabotage happens not just after ballots are cast and votes are manipulated it can happen in the way that the electorate is shaped through Voter Suppression laws and through laws that direct barriers to the ballot. And show the john r. Lewis voting laws advancement act as critical to restoring and strengthening core protections against voting discrimination that we lost in the Voting Rights act of 1965 when the Supreme Court struck down the provision and disable it. We also need the freedom to vote act to sentimental standards for access to the polls so voters in florida and georgia and texas can benefit from sameday Voter Registration for example. Or robust vote by mail and ballot return procedures just like voters in california and colorado in 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 east e. R. A. Thank you very much. Mr. Blunt. Thank you, chair. Mr. Gore, professor mueller and a professor bauer. In each of your testimonies, you highlighted the importance of the bill had clarify that states must use laws enacted before election day. Let me put two or three thoughts out there. You can all three respond to this. What potential problems with that provision solve . How does that provision help maintain the integrity of the elections . And does the provisions to uphold the rights of states to actually craft their own laws regarding elections and watch us start with mr. Gore here right in front of me. Well go mr. Gore mr. Mueller and mr. Bauer. Thank you, senator blunt. That is a key provision of the reform act because it leaves the people and the peoples representatives 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 rules of the election after the game has been played. It is a fundamental promise of our elections that they are held in a free and fair manner under rules that are said in advance. Follow during the election and are not change after the election. And so the reform act is a key provision that would prevent efforts to change the rules after votes have been cast, counted and compiled. It would leave state Legislature Since charts and setting those rules of the constitution directs. And it would ultimately empower state legislatures to set those rules in the minute they deemed best in each individual state. Mr. Mueller. Thank you, so that provision works well in tandem with abolishing the failed to make a choice provision. And the goal is that theres an election day, the first to say after the first monday november. All the rules are gonna be in place then and were going to follow those rules and adhere to them. And there were some concerns that arose in 2020 the legislatures could show up in december or january and appoint a slate of electors under rules that didnt exist at the time. There was conversation about this important 2000. Louisiana, 1960. This is a problem 1976 as well. Making sure that we have stable rules up front and we know are having a popular election and all of those roles are gonna control and govern the recount another processes that happen after election day is crucial to ensure that the votes, voices of the people will be represented when that certificate gets to congress. And mr. Bauer . I completely associate with the comments just made by mr. Gore, professor mueller. I think that this is a crucial part of electoral count act reform. And it will reflect in the electoral count reform act. Congress fixes the date under the constitution of the election. Due process requires that those that congressional 30 be respected and that a state legislatures did not attempt of the fact once the results are known to change the rules that were in place on which the voters ally. And so it is essential for that reason with our constitutional framework and for the additional points that we made by mr. Bore thank you. Ambassador eyes, and does anything in the bipartisan proposal displace any of the existing federal or state claims that are available now . It seems like plenty of places go to court and as others have pointed out, 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 . Options do remain available. I will note that im going to the place in the bill that at the end of the sixday period. For wreckage in order that the here we are. In order that the certificate have binding effect, here in congress, that the subsequent state ors federal judicial relief, this is in five c one, has the effect of in order for that to have effect, it will cut off the state review. So we are establishing a cut off here and i know there is some concern by those who actually have to administer this. And that with the length of that period, that is why wed like to have more time in order that state and federal procedures can run their course. Mr. Gore . Do you think wartime is helpful thing . We have all of these kind remedies and law. I dont believe that more time is necessary to allow the courts to adjudicate any disputes in president ial elections in the future. For several reasons. First, the reform act preserves all of the existing state procedures for adjudicating those disputes. So the federal claim or the federal suit would be filed in most cases of normal cases after a state process already has played out. Second, its going to be a very unlikely case that would be resolved within only six days. Most states certify the results of their election well before that 60 period would begin. So for example, in 2020 delaware certify its Election Results on november 18th. Nearly a full month before the Electoral College convened. Third, the issues presented in any kind of federal suit will be very narrow. The issue would only be what the governor had failed to certify the correct slate of electors as required by state law and existence prior to election day. And fourth, i think mr. Bauer may have mentioned before, the states have proven in the courts are proven very adept at adjudicating thesis boots in a very quick manner. That includes not just state corset with election contest and challenges but also federal courts including the u. S. Supreme court which in many cases has where he solved election disputes very quickly. Thank you chairman. I may have other questions later on for the record. Weve got other members here. Senator warner. Thank you, senator klobuchar. Let me thank you senator blunt for giving the Bipartisan Group of the time and space to try to put this together. I would point out, i know this is not the popular perception that americans have. Weve had a pretty good run of bipartisan activity in the senate. The infrastructure bill. There was a group that came together. The chips bill there was a group that came together. On the guns legislation. The budget, the veterans bill that was passed yesterday and now the cra so i know this is not popularly held by the public but there are a group of reasonable senators from both parties that actually try to get to yes. I also wanted quickly point out that while were on the electoral count act today there was a lot of good work done by this group as well. On issues around postwar the. In terms of elections. Making sure that absentee ballots would be swept and counted in the appropriate way. That there would be change before an election in appropriately by any kind of postmaster general them a view logical. I would urge the committee to take a look at those. We also i think did some good work on efforts around Voting Machines. For example we already have in law making sure that Voting Machines to accurate counts. We also have appropriate law that Voting Machines can withstand environmental challenges if they get rained on, flooded. One of the things weve not done that i think is very appropriate for this committee to take up would be making sure that we have Security Standards cyberSecurity Standards of Voting Machines. Senator blunt and i, senator king are on the intelligence committee. And we have seen efforts in the past to use Cyber Attacks on our voting systems and putting on a voluntary cyber standards for our Voting Machines. I think this makes enormous amount of sense. I also want to complement professor mueller. You have a series of technical amendments to the legislation we put together. I gotta tell you for my standpoint, i think all four of your technical amendments dramatically improve the bill and clarify some of them as readings. While im not going to get in my two minutes 50 seconds a chance to go through all of them. I hope will give you an extra minute. May point those but i also think professor mueller, senator blunt as you no republican background and i just want to say his improvements would get my support and i dont 2 or collins that are manchin but i have run about them as well. I think it is some very good work. I do want to get to a question. And that is that mr. Bauer and i want to thank you and your colleague jekyll smith as well as all the other law professors for your help and drafting the easier a. One of the things that we wrestled with the most was determining the role of the federal courts might have in resolving disputed election. And i think some of the commentary out there frankly is off base. One of the reasons why think professor muellers corrections may help. Lets, bob, if we could go through a lightning round in my last minute and 50 seconds. Does the east cra create a new cause of action . No, it does not. Does the e cra expand the jurisdiction of the federal courts . No, it only her vibes for extra reviews of cases that will be brought under existing law. Does the e cra in any way diminish the power of state courts . No it does not. You said that the siraj simply clarifies the role of federal courts under existing law we spoke with a lot of time going back and forth on this and have lots and lots of good work. Can you go ahead and describe that role of the federal courts in this process. The point that i was making was that the sort of claim that were talking about here that might be brought by president ial adVice President ial candidate challenge to do awfulness of a certificate. That either sick executor or officially put forward or see Legislature Might put forward. Its an action that could be brought today. Under existing law. By the president ial and Vice President candidates and what the electoral counter for does and i think quite effectively is simply provide on this very unforgiving timetable we face in any event. For expert in review. It establishes and proceed fractured review. Reviewed by a free judge court. And then reviewed by the United States Supreme Court. But it does not alter existing law. It does not as your question earlier suggested or asked me to respond to. It does not create any new causes of action. Its a procedural provision to allow this narrow kind of claim brought by these particular plaintiffs to receive expert in the treatment. And that is the position that only view mr. Goldsmith and the series of law professors who work with the group . To my knowledge, speaking of course for myself and i know this to be also position professor goldsmith. The answer is yes. And i know of nobody whos arguing to the contrary that i discussed this within the law professor community. There was really no issue that we spend more time on maybe senator capito would want to comment on this. And i think some of the critiques maybe have been misguided. Ive got a whole bunch of folks in my office where i go through this great corrections that professor mueller had legislation. But i think if there was any ambiguity, some of his technical fixes make some sense. So i think the chair the Ranking Member for giving this gang a chance to do some work and would welcome other gang members in future endeavors. Thank you, madam chair. Senator capital. The tax that weve got on the cra we should ensure those off . Im not getting to this one. Thank you, madam chair. Chair klobuchar and also Ranking Member blunt for having this hearing today. To my colleague, senator manchin and senator collins for testifying. I want to thank senator warner as well as a member of the group slashing or whatever were calling ourselves. Everybody else on this committee. Weve had several hearings on this issue. Im going to make a statement and what time have left. I have a time to ask a question. But i will thank the witnesses today. Not just for doing here today but what you are landing of support and expertise throughout this entire process. We did labor back and forth on the best way and i really encouraged about what i hear. I would also like to submit for the record a letter of support from the artery institute is in support of the ece reform. Efforts. Without objection, ill put that in there. One of the most important to see some members of congress is to certify the win of the president ial elections. Its not our job to adjudicate lawfully cast ballots. Were overturn the will of the american voters. I remain a strong support of our electoral system. Which provides power to the states. To tailor their election laws to the specific needs of their citizens. As federally elected officials, we must respect the constitutional role mercer for the states and not abuse or oversight powers which i think this bill winds out. Im proud to join 15 of my colleagues from both sides of the aisle introducing the electoral count reform and president ial transportation transition improvement act. This legislation is the only bipartisan bill that would amend the electoral count act of 1887 january six was a dark day. Here in our capital and for our democracy. But the politicization of the counting of electoral votes has been a problem for decades. Predating the most recent president ial certification. Members of congress have objected to certified electoral results as a means of changing political outcomes in electoral results that they dont like. Despite the in george bushs president george bush is clear win over then senator john kerry, the concurrence with several house members of a single senator. Forced to vote in both chambers of the weather to overturn ohios electoral results. Because of the rules that by the and im glad to see that we have on record that we all believe that that is a flawed proposition. Senator barbara boxers objection force congress to deliberate over whether described the popular vote at the city. Ohio this resulted in a vote of 1 to 74 in the senate. And 31 to 2 70 to 67 in the house of representatives. In 2017, houston across tried to object to results in nine states. To contest President Trumps electoral victory. Had a single senator had the bad sense to sign these objections, we would even require to law to vote on these these precedents Vice President pence to discredit the lawfully cast ballots of certain voters demonstrates the need for reform of the certification. Over the course of seven months, we worked on this. And im proud that weve put together a package that i think can be used improvements and tweaks as weve talked about but also hits at the core issues. The legislations solely solves a person supported lawfully given electoral results in our president ial elections. And provide clear guidelines. I think clarity is sort of the word of the day. Clarity is what we have been missing for over those hundred years. Its not a partisan power grab to federalize our elections. Or use congressional level so powers to dictate what outcomes a single party might prefer. These efforts, these legislative reforms offer Common Sense Solutions to recurring problems. So in consultation with many of you, im hoping that this bill could get enough support to pass both chambers and be signed into law by the president. I would like to ask in my remaining short period of time, i feel quite honestly and i dont know what the chair feels about this that we have a sense of urgency here. Lets be real. Were in a several months away from a midterm election. As soon as we turn the corner to january, or into another lengthy two year president ial election, my personal feeling is we need to button this up before the end of the year. That will then set the clarity to move forward for the next election. I know i might get the answer that none of you think you can Tell Congress when they should and how they should pass things. But since youre all here in your personal capacities, id like to know if you have an opinion on the urgency to get this wrapped up by the end of the year. Mr. Gore, also with you. Thank you, senator. I would presume to Tell Congress i need to say. That but i certainly agree that now is the time to act. Reform act is beneficial piece of legislation. Makes a number of improvements. Its pending before the congress now and the moments here. For congress to act. Ambassador is, and i would like to say on a personal privilege. I enjoyed visiting you and you are the ambassador. Thank you for your hospitality. Nice to see you again. I was thinking back to the nice and bipartisan time that we had. In prague. I think it is urgent we must seize the moment. But we must seize it correctly, taking account and i know no one feels more strongly than you do, senator capito. Taking account of the needs of those state officials who actually are going to have to deal with all this. The more time. Mr. Mueller . I want to echo the point on the states. Because the more lead time you give them, saying these are the rules, these are the deadlines, this is what your courts odorous alban a speedy time. This is from the certifications up to take place. Theres so much that has to happen behind the scenes in the 50 states. The morley time we give, our hardworking Elections Official in the states, the better. Mr. Bauer . I share the express humility on weighing in with congress should act. But i could not be more that is urgent and i would certainly be open at this, we delighted to say i think would be good to see congress act before the president ial election cycle begins. Thank you. And miss nelson . Yes, i concur with my colleagues. This is urgent reform thats needed and by congress advancing this as soon as possible, it frees congress up to do more to protect our elections and to enact other legislation that will complement and enhanced the cra. Thank, you madam chair. Thank you very much, senator capito. Thanks for your work and i swear with you on the timing issue. Next up, senator king and senator padilla. I believe, i dont think we have anyone else. Senator padilla has been patiently waiting. Senator king. I want to reason issue that has been discussed. All of you a very comfortably asserted tth