After Senate Republicans this week filibustered yet another effort to pass voting rights legislation, a bipartisan group of lawmakers barreled ahead with an overhaul to the Electoral Count Act, a law more than a century old which came under fire in the wake of the Jan. 6 attack on the U.S. Capitol.

What You Need To Know

  • A bipartisan group of lawmakers has forged ahead in an attempt to overhaul the Electoral Count Act, a law more than a century old which came under fire in the wake of the Jan. 6 attack on the U.S. Capitol

  • The effort comes after Senate Republicans filibustered yet another effort to pass voting rights legislation and amid calls for election reform nationwide

  • The law, more than a century old, governs the process by which Congress counts electoral votes for president; Former President Donald Trump and his allies attempted to put pressure on then-Vice President Mike Pence to exploit loopholes in the law by questioning some states’ electoral results and overturning the results of the election

  • The group, modeling themselves after the crew that successfully negotiated the agreement on the $1.2 trillion infrastructure bill, is also looking at other issues, including intimidating and threatening poll workers and election officials

The Electoral Count Act, which then-President Grover Cleveland signed into law on Feb. 3, 1887, governs the process by which Congress counts electoral votes for president — a process that supporters of former President Donald Trump sought to interrupt during the Jan. 6 insurrection.

The law came a decade after perhaps the most contested election in American history, the 1876 contest between Republican Rutherford B. Hayes of Ohio and Democrat Samuel J. Tilden of New York. Tilden won the popular vote, but three states – Florida, South Carolina and Louisiana — submitted conflicting results, throwing the most important tally, the electoral count, into doubt.

Congress created a commission, ultimately giving Hayes a 185-184 Electoral College victory; They struck a deal in the process by which Tilden would concede in exchange for the removal of federal troops from the South, officially ending the Reconstruction Era. The agreement is cited as the beginning of a century of Jim Crow laws in the South.

One decade later, Cleveland signed the Electoral Count Act into law, which lays out procedures and deadlines for states to follow when it comes to certifying election results and resolving disputes before submitting final tallies to Congress.

The law’s antiquated language is one problem; another is that it appears to give the Vice President and members of Congress largely ceremonial roles in recording election tallies that have been certified at the state level.

Former president Trump and his allies attempted to put pressure on then-Vice President Mike Pence to exploit loopholes in the law by questioning some states’ electoral results and overturning the results of the election.

Pence had said he didn’t have the power to overturn the results, and legal scholars agreed. But the fact that there was even doubt may speak to the cloudiness of the Act’s language.

The law also gives members of Congress the ability to object: Both Democrats and Republicans have exercised that right, but so far, the objections have not been sustained by enough of their colleagues.

The law has guided more than a century of elections, but experts say it doesn’t entirely outline how to disentangle disputes involving the highest office in the land.

“They knew it was ambiguity papering over disagreements, but they wanted something instead of nothing because they had had a series of close calls after 1876,” Edward Foley, who directs the election law program at Ohio State’s Moritz College of Law, told Spectrum News.

A group of lawmakers, both Democrats and Republicans, have gathered in recent weeks to work on overhauling the century-old law, as well as other issues, including intimidating and threatening poll workers and election officials.

The group includes Sens. Susan Collins, R-Maine, who has led the talks, as well as Sens. Joe Manchin, D-W.Va.,Thom Tillis, R-N.C., Mitt Romney, R-Utah, Kyrsten Sinema, D-Ariz., Jeanne Shaheen, D-N.H.

“We're going to be working hard over the recess,” Collins told reporters, saying that their efforts are modeled after the successful negotiations on the $1.2 trillion infrastructure bill. "I'm very encouraged by the fact that so many of our colleagues on both sides of the aisle have indicated an interest in making sure that votes are properly counted and certified.”

Collins said they are “looking at additional protections against violence and threats for poll workers and election officials” among “some of the issues that we're looking at,” but in terms of actual legislative text, “we’re not there yet.”

“We've got to resolve a lot of issues first, but we're committed to do that and we've been working for three weeks,” she said, refusing to “put a timeline” on the bill.

“We've done a lot of research,” Collins said. “We’ve talked to election experts, professors, the election assistance commissioners, all sorts of people to make sure we get this right."

"Some items relate to making sure that election officials are not harassed," Romney told reporters. "Others relate to how elections are certified. Others relate to what the role of the vice president is in the electoral counting process and how you would deal with an objection to a slate of electors."

"There are long lists from each of us, and we are just now beginning to talk about which of these we'll find sufficient support to include in a bill," the former GOP presidential candidate added.

The group still has some specific details that need to be worked out, Missouri Sen. Roy Blunt, who chairs the Senate’s rules committee, said.

“Certainly nobody wants election officials to be harassed or threatened,” Blunt, who noted he’s on the “periphery” of the group, told NBC News. "How you do that — how you draw those lines — is a little trickier.”

Manchin said that he was particularly concerned with threats and violence against election workers. 

“They're scared now, because of the highly charged political atmosphere,” Manchin said. “We do want to make sure that we can raise this to the level of a federal crime if you accost, if you threaten anyone who works at the polls, you'll be dealt with with the harshest penalties. You're not going to fool with the count and our voting people.”

Sens. Angus King, I-Maine, Amy Klobuchar, D-Minn., and Dick Durbin, D-Ill., are separately working on a draft proposal to reform the act. Durbin told reporters he plans to meet with Collins to see if they can work together.

“We wouldn't necessarily merge our efforts, no,” Durbin told reporters. "We just want to see what they are doing and talk it through.”

“I’ve been working on this since last spring, and we’ve got a draft and a lot of background and notes which I’ve offered to share,” King told Politico. “Hopefully we can get together and work this out.”

At a press conference this week, President Joe Biden predicted before Republicans filibustered on the Freedom to Vote: John R. Lewis Act, that “we will get something done on the electoral reform side.” 

Collins said she was “encouraged” by Biden’s comment.

Manchin said that Biden “feels as strong about this as we're feeling about it.”

“When we see what happened in the insurrection, and we thought this would be the first place we should have started,” the West Virginia moderate said. “Basically take care of what caused the problem, the attack on our Capitol.”

“We’re going to make something happen,” Manchin pledged on Thursday. “We’re going to get a bunch of people together, Democrats and Republicans, and get a good piece of legislation that protects the counting of the vote, the accuracy of the vote and making sure that the person that has been deemed the winner, you can bet the house on that one.”

White House press secretary Jen Psaki said Thursday that the Biden administration supports these efforts, but noted it’s not a substitute for more widespread election reform.

“We've never been against it,” Psaki said. “We have always wanted to be clear that it was not a substitute for voting rights legislation, which some I think were attempting to project … especially as we were working to get the John Lewis Voting Rights Act across the finish line, and the Freedom to Vote Act, which do very different things than the Electoral Count Act

Also supportive of reforming the legislation: Both Republican leaders of Congress.

“Just like any bill out there, in every Congress, we look at an old piece of law,” House GOP leader Kevin McCarthy, R-Calif., told reporters this week. “So you can always modernize it and others. There's nothing wrong with looking at any piece of legislation. I would think we'd look at a lot of things and make things accountable.”

“As I’ve said before, I think it needs fixing, and I wish them well, and I’d be happy to take a look at whatever they come up with,” Senate Minority Leader Mitch McConnell, R-Ky., said. “I just encourage the discussion because I think it clearly is flawed. This is directly related to what happened on Jan. 6, and we ought to figure out a bipartisan way to fix this.”

A House committee this week released a report about the Electoral Count Act, saying the law is "badly in need of reform" and outlining a number of proposals to fix the 135-year-old law.

"This is a statute that's over 100 years old," Rep. Zoe Lofgren, D-Calif., head of the House Administration Committee and a member of the Jan. 6 panel, told NPR this week. "It has ancient language that may not be as clear as we'd want, and we are now observing the potential of threats to the orderly running of elections and apolitical running of elections in the future."

"We want to do everything we can to make sure that there is no funny business," she added.