On Thursday, December 22, 2022, Voting Rights and Democracy Forum staff members spoke with Stephen Spaulding, Policy Director to Chairwoman Amy Klobuchar, U.S. Senate Committee on Rules and Administration.
Mr. Spaulding previously served as Senior Elections Counsel to the Committee on House Administration, where he advised Rep. Zoe Lofgren (D-CA) on election administration, election security, campaign finance, and voting rights. Additionally, Mr. Spaulding was the Senior Advisor to the President & Legal Counsel for Public Policy & Legislative Affairs at Common Cause.
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By Sonia Montejano, Sarah Seo, & Jason D’Andrea
Dec 26, 2022, 1:00 PM
On Friday, December 23, 2022, Congress passed the Electoral Count Reform and Presidential Transition Improvement Act (“ECRA”) as part of omnibus appropriations legislation. Coming at the tail-end of the lame-duck legislative session—and nearly two years since a violent insurrection at the U.S. Capitol threatened to interrupt the democratic transfer of executive power—the bipartisan legislation is aiming to close the electoral loopholes that came into focus on January 6, 2021. The ECRA reforms and modernizes the vague and antiquated Electoral Count Act (“ECA”), the 1887 law governing the counting of Electoral College votes in Congress.1 Ch. 90, 24 Stat. 373 (1887) (codified as amended in scattered section of 3 U.S.C.).
Co-authored by Senators Susan Collins (R-ME) and Joe Manchin (D-WV) and co-sponsored by a bipartisan group of thirty-nine senators, the ECRA is designed, in part, to avoid a repeat of January 6. The law clarifies a number of ambiguities within the presidential election framework that came to light when former President Trump and his allies launched a campaign to overturn President Biden’s victory in the 2020 presidential election.
Notably, the ECRA:
Voting Rights and Democracy Forum staff members spoke with Stephen Spaulding, Policy Director of the U.S. Senate Committee on Rules and Administration, about the implications of this bipartisan achievement. In September 2022, the Senate Committee on Rules and Administration, in a 14-to-1 vote, further amended the ECRA by adopting a bipartisan amendment by Chairwoman Amy Klobuchar (D-MN) and Ranking Member Roy Blunt (R-MO) and sent the ECRA to the Senate floor.6Notably, the U.S. House of Representatives also passed its own proposal for ECA reform in September 2022. See Presidential Election Reform Act (“PERA”), H.R. 8873, 117th. Cong. (2022). For a chart comparing the House’s version to the ECRA, see the Electoral Count Act Reform Comparisons Chart here.
The following sections provide analysis of various problems with the ECA, the possible implications of the ECRA’s statutory changes, and insights from Mr. Spaulding.
1. Rules for the Conduct of the Joint Session of Congress:
Amending 3 U.S.C. § 15
Section 109 of the ECRA, “Clarifications Relating To Counting Electoral Votes,” amends 3 U.S.C. § 15, “Counting electoral votes in Congress,” in its entirety.7 Ratified in 1804, the Twelfth Amendment states that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” U.S. CONST. amend. XII. Following the disputed presidential election of 1876, Congress enacted the ECA and used similar language to provide for a mechanism if a state’s vote was not certified by its governor. See 3 U.S.C. § 15.
First, the ECRA clarifies that the role of the vice president (the president of the Senate) is purely ceremonial.
Problems Identified under the ECA: As the House Select Committee to Investigate the January 6th Attack on the United States Capitol laid out, then-President Trump pressured then-Vice President Mike Pence to refuse to count electoral votes during Congress’s joint session on January 6, 2021. The Eastman Memo—which was authored by conservative lawyer John Eastman—contained a six-step plan outlining this tactic by suggesting that the vice president was the “ultimate arbiter” of the election and had the power to delay Congress’s counting of Electoral College votes.
Under the Updated ECRA: “[T]he role of the President of the Senate while presiding over the joint meeting shall be limited to performing solely ministerial duties . . . and shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”8S. 4573, 117th Cong. § 109 (2022).
The ECRA’s updated language not only reflects the “widespread consensus” that the vice president’s role is ministerial, but also establishes that the vice president’s role “is in the opening, and not the counting” of votes, “just as the Twelfth Amendment provides.”9See, e.g., The Electoral Count Act: The Need for Reform: Hearing Before the S. Comm. on Rules and Admin., 117th Cong. 7 (2022) (statement of Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University School of Law).
Mr. Spaulding’s Insights: “The vice president, when presiding over the counting of votes, never had any authority to just reject votes and send electoral slates back to the states. But to the extent that the former president was under the impression that the vice president did have that power, Congress needed to make it even more clear than it already was. And so given the experience of what members themselves saw on January 6th, given the dangerous legal arguments that some of the former president’s advisors were supporting, it was critical that Senators came together in a bipartisan way to fix, update, and modernize the statute. This law’s language was very antiquated. This was really an effort to bring clarity to the law.”
Second, the ECRA raises the threshold for members of Congress to object to electoral results.10S. 4573, § 109. Under the ECA, only one representative and one senator could interrupt the joint session and force Congress to divide into their separate chambers to debate and vote on an objection.
Problems Identified under the ECA: The ECA provided two permissible grounds for rejecting states’ electoral votes: (1) the electors’ appointments were not “lawfully certified”; or (2) the electors’ votes were not “regularly given.”113 U.S.C. § 15. As several witnesses testified during the Senate Committee on Rules and Administration’s hearing in August 2022, the ECA failed to define either “lawfully certified”12The Electoral Count Act: The Need for Reform: Hearing Before the S. Comm. on Rules and Admin., 117th Cong. 10 (2022) (statement of Norman L. Eisen, Former U.S. Ambassador to the Czech Republic) (“Historically, ‘lawfully certified’ has been understood to require that the issuance of the certificate of electors conform with the ECA’s rules and not otherwise be unconstitutional.”). or “regularly given.”13See id. (“[R]egularly given” . . . refers to the casting of electoral votes [and] . . . has been interpreted to prohibit votes that are constitutionally defective or are cast corruptly, though its exact scope is unknown.”). Furthermore, the ECA allowed for only one representative and one senator to force Congress to divide into their separate chambers, producing an “invitation for grandstanding” by fringe members of Congress.
Under the Updated ECRA: While the ECRA does not define the terms in question, its increased objection threshold—specifically, the requirement that “at least one-fifth of the Senators . . . and one-fifth of the Members of the House” sign on to an objection before it is heard—mitigates the risk that outlandish objections will interrupt the count.14S. 4573, § 109.
Mr. Spaulding’s Insights: “When looking at amending the Electoral Count Act as a whole, there are several things that everybody agreed with—including not only clarifying the role of the vice president but raising the objection threshold of both chambers so it would no longer be just one House member and one Senator objecting. This common ground is about ensuring that January 6th does not happen again.”
2. Clarifying the Time for Appointing Electors and Striking the ECA’s Failed Election Provision: Striking 3 U.S.C. §§ 1-2
Section 102 of the ECRA, “Time for Appointing Electors,” strikes 3 U.S.C. § 1, “Time of appointing electors,” and 3 U.S.C. § 2, “Failure to make choice on the prescribed day.”
Problems Identified under the ECA: While 3 U.S.C. § 1 provided that electors be appointed “on the Tuesday next after the Monday in November” (i.e., Election Day), 3 U.S.C. § 2 created an exception to this timing requirement, referred to as the “failed election” provision.153 U.S.C. § 2 (“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”). Specifically, 3 U.S.C. § 2 allowed states that have “failed to make a choice” on Election Day to determine the “manner” for appointing their states’ electors.16The “manner” of appointment could include a range of options, such as another opportunity for voters to cast ballots or the legislature appointing electors itself.
Problematically, the ECA failed to define the term “failed to make a choice.” In the aftermath of the 2020 election, former President Trump and his allies attempted to exploit this vagueness by pressuring legislatures in states won by President Biden to throw out the popular vote, declare a “failed election,” and appoint their preferred electors.
Under the Updated ECRA: The ECRA, as amended by the Senate Committee on Rules and Administration’s bipartisan amendment, strikes 3 U.S.C. §§ 1-2 and inserts:
“The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.”17S. 4573, § 102.
“Where ‘election day’ means the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President held in each State, except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting as necessitated by force majeure events that are extraordinary and catastrophic as provided under laws of the State enacted prior to such day, ‘election day’ shall include the modified period of voting.”18Id.
By narrowing the language to capture only “force majeure event[s] that are extraordinary and catastrophic,” limiting the remedy available to simply extending the voting period — and preventing states from passing new laws to govern the count after Election Day, the ECRA forecloses potential avenues for election subversion by bad-faith state actors.19See, e.g., The Electoral Count Act: The Need for Reform: Hearing Before the S. Comm. on Rules and Admin., 117th Cong. 6 (2022) (statement of Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University School of Law).
Mr. Spaulding’s Insights:
On bad-faith state actors: “Congress needed to make sure that states are following the rules to choose presidential electors that were in place before the election.”
On amending the failed election provision: “Congress wanted to make it very clear that a state legislature cannot just declare an election failed because of baseless allegations of fraud, and then use that as a justification to throw out the people’s votes and overturn the election results. This is one of the most important parts of the bill.”
On the amendment inserting the term “force majeure” as an additional qualifier on “extraordinary and catastrophic” events: “By incorporating force majeure events that are extraordinary catastrophic, what Congress is getting at is the concept of how to address totally unanticipated disasters that may necessitate modifying the period of voting beyond election day in extremely rare circumstances – in other words, true emergencies. And these are things that have affected election administration before of course. Hurricane Sandy in 2012, for example, as well as the terrorist attacks in New York City on September 11th, 2001, which affected the City’s mayoral primary election. This provision clarifies what sorts of unanticipated emergencies would necessitate modifying the period of voting in very limited circumstances. And the election laws that were adopted before an election day continue to apply.”
On the ECRA not explicitly defining what constitutes either a catastrophic or substantial event (in contrast to the House’s Presidential Election Reform Act (“PERA”) that explicitly defined what constitutes either a catastrophic or substantial event): “There were several proposals on the table, including not only just the House’s bill, but Senator Klobuchar initially drafted legislation with Senators King and Durbin which also defined catastrophic or major disaster events. Clearly, there are several approaches to this issue. And through the process of legislating and bipartisan consensus building to get this across the finish line, this is the strong place where the legislation landed – inserting force majeure – with tremendous bipartisan support.”
On the ECRA’s bipartisanship: “While there are a lot of good ideas about how to deal with the catastrophic events language, for example, I think Senator Klobuchar’s leadership with Senator Blunt on inserting the force majeure clause showed where there was a consensus, and that accomplishes the goal everyone knew was important. Through the Committee process and the work of the bipartisan working group, the force majeure language in the manager’s amendment was, we think, really important.”
3. Other Parts of the ECRA Discussed with Mr. Spaulding
Re: judicial review in the ECRA and the ECRA not defining the number of days to extend voting in a force majeure event (in contrast to the House’s PERA, which explicitly allowed for a maximum of five days where a state could extend voting).
Mr. Spaulding: “We think there are very clear guardrails in place to ensure that there can be judicial review. The legislation provides presidential candidates—if there’s any issue with the certification—to bring an action to a three-judge panel with the ability to go to the U.S. Supreme Court. This guards against rogue governors and other gamesmanship to try an overturn people’s votes.”
Re: concerns about the constitutionality of this Congress binding a future Congress.
Mr. Spaulding: “The legislation is squarely constitutional and outlines the process that Congress follows when it meets in joint session to count the electoral votes. This is a statute where Congress is spelling out how Congress counts electoral votes. It leaves to the states how they choose electors. Congress can amend statutes really at any time. And that’s what it’s doing here. It’s been a long time since we’ve had a chance to update this law and where we have this degree of very broad bipartisan consensus.”
Re: the future of voting rights and other issues of upholding democratic institutions.
Mr. Spaulding: “Given where we were on January 6th and how central the Electoral Count Act was to what transpired that day, especially on the floor, Senator Klobuchar talks about how democracy prevailed. The Senator remembers how it was 3:30 AM, and she, Vice President Pence, and Senator Blunt walked across broken glass and passed the spray-painted columns accompanied by two young people with the mahogany boxes containing the last of the electoral votes on their way back to the joint session to finish the count. And democracy prevailed. We still have work ahead to accomplish on voting rights and strengthening democracy. It was important to move this bill forward on such a strong bipartisan basis. There was real progress, and real confidence in how legislating should work with this bill.”
The ECRA is an incredible feat. Its thoughtfully crafted provisions fortify our electoral system against the type of schemes deployed in the aftermath of the 2020 election. Nonetheless, as Mr. Spaulding states: “we know that there is tremendous work ahead around the issue of voting rights in general, in setting basic national standards for casting ballots which is what Senator Klobuchar’s bill, the Freedom to Vote Act, would do. And we need to update the Voting Rights Act by passing the John Lewis Voting Rights Advancement Act which would respond to the Shelby County decision. Both the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act are critical pieces to strengthen and bolster democracy.”
* Sarah Seo, Managing Editor, Sonia Montejano, Associate Editor, and Jason D’Andrea, Editor-in-Chief, conducted the interview and authored this Commentary