Dem
51
GOP
49
The Electoral Count Act of 1887 has some ambiguities in it, particularly regarding the role of the President of the Senate (a.k.a. the Vice President of the United States) in the count. Donald Trump tried to exploit those ambiguities to get Mike Pence to toss out electoral votes Trump wasn't keen on. Most members of Congress realize they need to clarify the Act before Jan. 6, 2025. Democrats don't want a repeat of Trump's performance—ever again. Republicans don't want to give Kamala Harris any bad ideas on that date. So reform can probably be done if everyone works on it.
Senate Majority Leader Chuck Schumer (D-NY) has said he wants an update to the ECA included in the must-pass budget that needs to be enacted before Friday to prevent the government shutting down just before Christmas. Only Sen. Joe Manchin (D-WV) wants to put 330 million lumps of coal in everyone's Christmas stockings.
As usual, the budget bill is late because the parties don't agree on priorities. They never do. Most likely the Senate will pass a bill to continue the government for one more week to give the two sides more time to yell at each other over the budget. Nothing will change, of course, and both parties knew about this deadline a year in advance, but it's always like this.
The legislation Schumer has in mind would boldly state that the President of the Senate has no authority at all to question or set aside any electoral votes signed by a state's governor. If there were disputes and multiple slates of electors showed up, the one approved by the governor would win. If the governor signed off on a slate, then changed his mind and signed a second slate, we'd be in uncharted territory, but hopefully no governor would do that (although if Kari Lake had been elected governor of Arizona, we're not so sure).
The reason why this is not a slam dunk is that the wording of the proposed update is itself not clear. It says that members of Congress (but not the VP) could object—but only if the electoral votes from some state were not "lawfully certified." However, the update does not define what that means. For example, could a state legislator pass a law saying that the speaker of the state House has to do the certifying, not the governor?
In addition, there is some ambiguity of the role of the federal courts, if any, in disputes. The Fifth and Eleventh Circuits have ruled that the courts have no role to play in electoral vote disputes. Several members of Congress want this matter clarified.
These matters should be easily solvable, except that the House wrote the patch to the ECA and doesn't want the Senate to mess with its handiwork. There are big egos involved here. Will the Senate swallow its pride and go with the House version, even if it is imperfect, or will it insist on getting it right since this might be the last chance to do so? We should know in a week. (V)