How did KS, MO lawmakers vote on bill to prevent overturning presidential elections?

The U.S. House approved a bill Wednesday that would update the 135-year-old law determining how Congress certifies presidential elections to prevent lawmakers from using an antiquated law to overturn the will of voters.

The vote came two days after Reps. Zoe Lofgren, a Democrat from California, and Liz Cheney, a Republican from Wyoming, introduced their measure to update the Electoral Count Act, leapfrogging an effort at building bipartisan support for similar legislation in the U.S. Senate.

The bill makes it more difficult for lawmakers to object to the outcome of a presidential election, both by increasing the number of lawmakers it takes to send an objection to a roll call vote of both the U.S. House and Senate and by narrowing the reasons why a lawmaker can object. It also ensures state legislatures cannot override their own voters and limits the Vice President’s role in certifying the election.

It passed the House 229-203, with nine Republicans in support of the bill.

All three of the Democrats who represent Kansas and Missouri — Reps. Sharice Davids, Emanuel Cleaver and Cori Bush — voted in support of the bill.

“While this legislation cannot prevent demagogues from lying to the American people in an effort to incite violence and undermine the constitutional principles that have led our nation to greatness,” Cleaver said. “It provides further protection against extreme attempts to bend the rule of law in favor of one political party and against the will of the people.”

None of the House Republicans from Kansas or Missouri voted in favor of the bill. All of them — with the exception of Missouri Rep. Ann Wagner — voted to overturn the results of the 2020 presidential election.

Rep. Ron Estes, a Republican who represents the Wichita region, said Tuesday he is open to reforming the Electoral Count Act, but he panned Cheney and Lofgren’s proposal as a partisan bill intended to drive a political narrative before the midterm elections.

“My concern right now is that the House version was really just created in a vacuum by the group that’s working with the January 6 committee,” said Rep. Ron Estes, R-Kansas. “And it doesn’t have bipartisan support.”

Lofgren and Cheney both serve on the House committee investigating the January 6, 2021 insurrection. Cheney lost her leadership in the House Republican Conference and her August primary after she was one of 10 House Republicans to vote last year to impeach then-President Donald Trump for incitement of insurrection.

A similar proposal has been moving slowly in the Senate, but it appears to have more bipartisan appeal than the House version.

“If we don’t do it in a bipartisan fashion, it’s not going to be something that is good for the country,” Estes said.

Rep. Jake LaTurner, a Kansas Republican whose district will include Wyandotte County beginning next year, noted the Senate bill appears to have more Republican support and called it “less prescriptive” than the House version, but he said that he wanted to review the legislation. Rep. Tracey Mann, a Republican who represents western Kansas, said on Tuesday he wanted to read the bill and directed questions to his office, which did not respond to questions.

The House bill contains language that would effectively put every member of the chamber on the record for whether they pin the blame for the January 6 attack on the U.S. Capitol on Trump, a little more than a month before the midterm elections.

Of the Republicans who voted for the House bill, eight of them voted to impeach former President Donald Trump for his role in the Jan. 6, 2021 insurrection at the U.S. Capitol. All of them lost their primaries. The two Republicans who voted to impeach Trump but won their primaries — Rep. David Valado, of California, and Rep. Dan Newhouse, of Washington, did not vote in favor of the bill.

The ninth Republican vote was Rep. Chris Jacobs, a New Yorker who is retiring from Congress this year.

The vote comes amid efforts across the country to undermine the democratic process, as some politicians have refused to concede their races after losing and as others attempt to spread misinformation about the validity of U.S. elections.

There is also an effort to push “Independent State Legislature Theory,” the idea that elected state lawmakers have significant power over federal elections, potentially giving them the ability to overturn election results in their states for a desired outcome.

Election law experts associated with both political parties have urged Congress to update the electoral count law, which they say is ambiguous and creates a risk that someone would attempt to use it to overturn the will of the voters.

“The problem is that the 1887 Act has some major ambiguities in it that we now know people are willing to exploit to undermine the process of recognizing the lawfully cast and counted votes in the states,” said former federal Judge Michael McConnell, who teaches constitutional law at Stanford University.

While the 2020 election stands out because more than half of House Republicans voted to overturn the election results — lawmakers have raised objections to four of the past six elections.

The Senate bill moves slowly

The Senate has not matched the sense of urgency felt by some constitutional and elections experts, who are concerned by how any perceived loopholes in the antiquated act may be used to seed doubt about the validity of an election or could be used in an attempt to overturn results all together.

In contrast to the House bill, the Senate bill is co-sponsored by 20 senators, 10 of whom are Republicans.The Senate bill, which omits the language related to the Capitol attack, was crafted by Maine Republican Sen. Susan Collins and West Virginia Democratic Sen. Joe Manchin.

“Our bill is backed by election law experts and organizations across the ideological spectrum,” Sens. Susan Collins, R-Maine, and Joe Manchin, D-West Virginia, said Wednesday. “We will keep working to increase bipartisan support for our legislation that would correct the flaws in this archaic and ambiguous law.”

It will be discussed and potentially amended in the Senate Rules Committee next week, but Senate Majority Leader Chuck Schumer has not offered specifics about when he wants to bring the bill to the floor for a vote.

“It’s something we’d like to get done and we’re going to try to figure out the best way to get it done,” Schumer told a reporter earlier this month.

There may be a small window of opportunity. Should Republicans win control of the House in the midterm elections, it may be more difficult for a version of the bill to get a vote in the lower chamber. That would risk going into the 2024 presidential election without reforming a law that members of Trump’s campaign attempted to exploit.

A poll commissioned by the nonpartisan Campaign Legal Center, a nonprofit that advocates for reform of the Electoral Count Act, found that 62% of Americans are in favor of reforming the law.

The Electoral Count Act, passed in 1887, was written in response to the 1876 presidential election, where Samuel Tilden won the popular vote but lost disputed electoral votes in several southern states. It resulted in a deal that Rutherford B. Hayes would become president if he ended reconstruction in the south and an attempt at ensuring that Congress has a formal counting process so they couldn’t tailor the results to a specific outcome.

The vague legislation was at the heart of a last-ditch effort by members of former President Donald Trump’s campaign to overturn the 2020 presidential election. The House committee charged with investigating the attack on the Capitol on January 6, 2021 presented evidence earlier this year that Trump officials were working with legislatures to submit false slates of electors, and that Trump himself pushed former Vice President Mike Pence to prevent the certification of the election.

But McConnell, a retired federal judge who was appointed by President George W. Bush, said the need for reforming the law goes beyond Trump. He noted that lawmakers had objected to the results of both of Bush’s elections and to Trump’s election in 2016. Bush’s 2004 election was even taken to a roll-call vote of both chambers of Congress — similar to Biden’s election in 2020 — though only one senator and 31 representatives objected.

“It simply doesn’t make any sense for something as important as the counting of votes for president of the United States to have these kinds of ambiguities hanging out there,” McConnell said.

Both pieces of legislation make it more difficult for lawmakers to object to the election. In previous elections, it only took one member of the House of Representatives and one Senator to object to the electors of the state to prompt a roll call vote of all the members of the U.S. House and Senate.

The Senate bill would raise that threshold to one-fifth of the Senate and one-fifth of the House. The House bill would raise the threshold to one-third of each chamber.

Josh Douglas, an election law professor at the University of Kentucky, said he believed the higher the threshold the better.

“It’s needed because not only was there the insurrection on January 6, but it was fueled by this ability of just one house member on one senator to object to a state’s electoral college votes, without any basis for the objection,” Douglas said.

The two bills seek to create a basis for when lawmakers can object to the election, requiring any objections to focus on the states’ electors rather than any issues of voting in the states, the way it has been previously used by Democrats concerned about voter suppression and Republicans concerned about fraud. Under the new legislation, lawmakers would only be able to object if an elector was ineligible to cast a vote, or the electors were selected on the wrong day.

The House version also allows members to object to the certification of electoral college votes if the states votes went to someone who “engaged in insurrection or rebellion” against the U.S. government, which would potentially serve as a way for lawmakers to object to a Trump victory in 2024.

The bills also ensure that state legislatures can’t override their own voters and that the Vice President only has a ministerial role in counting electoral votes, matching the way Pence interpreted the law while under pressure from Trump to delay the certification of the election to help their campaign overturn the results.

Amid claims that the House bill was more of a political move than an honest attempt at reforming the law, Cheney’s office sent out praise it had received from Republicans. One of the statements was from former Judge Michael Luttig, who testified in front of the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol, that democracy is “on a knife’s edge.”