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Reforming the Electoral Count Act

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Congress has been considering legislation to update how votes are counted and cast by the Electoral College throughout 2022.  

Thus far, proposals in both the House and Senate have been put forward in a bipartisan manner. This legislation will clarify existing ambiguities in the legislation around the role of the Vice President and the certification of electors. They will also offer transparency around how electors are appointed. 

Currently, this process is governed by a law passed in 1887 called the Electoral Count Act (ECA). The ECA was passed to set up a formal counting procedure for electoral votes following the 1876 presidential election, which saw states submit multiple slates of electors and where a deadlock in electoral votes left Congress unable to resolve the election for several weeks. The 1880 and 1884 elections that followed were also close and forced Congress to put legislation that would put procedures in place to resolve future election disputes. 

How the ECA was Used to Challenge the 2020 Election 

Fast forward to 2021, when lawyers and supporters of former President Trump attempted to use the ECA’s ambiguities to challenge the results of the 2020 election. The loopholes they tried to exploit included persuading Vice President Pence to throw out votes of electors and recruiting slates of “fake electors” from states where Joe Biden had been declared the winner and the electoral slate had been certified in his favor.  

These constitutional and political challenges all played out while thousands of insurrectionists rioted at the US Capitol, broke into the chambers of the US House and Senate, and threatened the lives of members of Congress. 

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Congress’ Plans to Reform the ECA 

The Senate Bill 

In January 2022, a bipartisan group of Senators came together to discuss multiple issues surrounding the 2020 election, including threats to election workers, election administration reforms, and the Electoral Count Act. The group met for months to draft language and come to an agreement around reforms that could move forward in an equally divided US Senate. 

In July 2022, legislation led by Senators Collins and Manchin and cosponsored by a bipartisan group of 14 additional Senators, now known as the Electoral Count Reform and Presidential Transition Act, was introduced. The legislation quickly moved to a hearing in the Senate Rules Committee, where it was discussed by constitutional scholars, and civil rights advocates. After the hearing, more Senators added their names as cosponsors, bringing the bill up to 32 cosponsors (15 Republicans and 16 Democrats).  

In September, the legislation was marked up in committee, and Senators voted 14-1 to discharge the bill from committee.  

The House Bill 

The House bill, the Presidential Election Reform Act (PERA), is sponsored by Representatives Lofgren and Cheney. They also serve on the Special Committee investigating the January 6 attack on the Capitol. Their legislation was quickly introduced in September and moved immediately to the floor of the House, where it passed with the support of all Democrats in the House and nine Republican members.  

Every vote must be counted.

Breaking Down the Legislation

The Senate and the House versions of the legislation have similarities and differences. Here are the key areas that each bill addresses and what the language in the legislation moves moving forward. 

  • Clarifies the role of the Vice President: Each bill clarifies that the role of the Vice President is ceremonial. Each bill also says that the Vice President cannot accept, reject, or determine the validity of electors or the votes of electors. 

  • Requires electors to be appointed on Election Day: Each bill clearly states that the electors are appointed on Election Day (“the Tuesday after the first Monday in November”) in accordance with pre-existing laws. Each bill also eliminates the concept of a failed election and goes further to define narrow circumstances for appointing electors after Election Day because of “extraordinary and catastrophic events.” Notably, the bills differ on the definition of “extraordinary and catastrophic.”  

  • Clarifies the process by which state officials send their results to Congress: The bills ensure that state executives or governors must certify electors and send them to Congress. It also provides that Congress treats the certification as “conclusive” unless it is modified by a court. But the bills differ on their timelines to complete the process and on the date the electoral college is set to meet. 

  • Defines the role of federal courts in certifying election results: The bills establish a process where presidential candidates can bring forth claims if governors or state executives do not establish certificates of electors. They direct that challenges be heard by a three-judge panel, and establish direct appeal to the US Supreme Court.  

  • Raises the threshold for objections by members of Congress:  Existing law says that objections to electoral votes can be made with the signature of one Senator and one representative. The new pieces of legislation would require a higher threshold, though the bills differ on the exact threshold. Both bills also outline the specific grounds for objections to votes cast by electors.     

  • Clarifies how the winner of the Electoral College is calculated: The legislation offers clarification on the calculation of the majority of electors if some states fail to appoint allotted electors or if Congress rejects electoral votes.  

We expect a final version of the legislation to move during the lame-duck session of Congress following the 2022 election. The Senate legislation has a broader base of support and the backing of enough senators to bust the filibuster. It will be up to leadership in the Senate and the House to come together to see this cross the finish line.  

The League continues to urge lawmakers to move the legislation forward and not delay with final passage.  

Next Steps and Voting Rights Reforms 

Reform of the Electoral Count Act is vitally important to ensuring the peaceful transition of presidential power. The League welcomes efforts by lawmakers to move forward with this legislation. We cannot have another event like the one on January 6, 2021. This legislation will help to ensure that bad actors do not try to exploit loopholes to challenge the final votes of the electoral college.  

At the same time, this legislation is not a substitute for the legislation needed to ensure that the right to vote for all Americans is protected. Since the Supreme Court gutted the heart of the Voting Rights Act in 2013, legislatures and state executives have tried to change the voting rules, especially for communities of color, across the country. Federal legislation that restores the Voting Rights Act, like the John Lewis Voting Rights Advancement Act, and legislation that establishes national standards for voting, like the Freedom to Vote Act, is still needed. The League will continue to fight for voters at all levels of government by pushing for pro-voter reforms, fighting discriminatory voting changes, and pushing to make sure every voter has the freedom to vote.  

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