By Thomas A. Berry
Jan 6, 2023, 4:00 PM
This commentary was originally published in the Cato at Liberty Blog on January 6, 2022.
Two years ago today, dozens of members of Congress attempted to reject the electoral votes of Arizona and Pennsylvania during the electoral vote count. These senators and representatives invoked the Electoral Count Act as the legal grounds for their objections. At the time, that law defined the procedure for both counting electoral votes and objecting to the validity of disputed electoral votes. These senators and representatives treated the Electoral Count Act as a license to relitigate election‐law disputes that the courts had already settled. Their plans to oppose enough electoral votes to swing the election, along with President’s Trump’s claims that Vice President Pence could reject electoral votes unilaterally, gave false hope to many of Trump’s supporters. Many came to view January 6 as the last chance for the president’s theories of election fraud to be vindicated, with violent and horrifying results.
Two years later, Congress has taken a huge step toward foreclosing the possibility of future such initiatives to throw presidential elections into doubt on the last possible day. The Electoral Count Reform Act (ECRA), signed into law as part of a year-end omnibus spending bill, makes crucial changes to update and modernize the electoral count process. As the first overhaul of the Electoral Count Act since it was originally enacted in 1887, the ECRA will eliminate many of the ambiguities, whether real or alleged, that formed the basis of legal schemes to throw the last election results into doubt. Under the law as it stands now, the theories raised two years ago are squarely rejected by the statute’s plain text.
How would the events of two years ago have gone differently if the Electoral Count Reform Act had already been law at the time? First and perhaps most importantly, none of the objections to an electoral vote raised on the House floor would have even been debated and voted on. That’s because the ECRA has raised the threshold to pause the count and trigger a debate from just a single member of each house to one fifth of each house. No objection from two years ago came close to receiving the support of 20 senators, which is now the minimum required (along with 87 House members). Simply raising this threshold will go a long way toward ensuring that fringe theories supported by only a small fraction of either chamber cannot be used to repeatedly pause and drag out the electoral count, stoking emotions and uncertainty.
Second, the ECRA makes explicit that the Vice President’s role “while presiding over the joint session shall be limited to performing solely ministerial duties.” In the run-up to January 6, Vice President Pence was urged to accept a flawed legal theory that he had the power to unilaterally reject electoral votes (or send them back to the states for reconsideration). This theory was based on the Vice President’s duty, as President of the Senate, to preside as chair of the joint session of Congress during the count.
If there was any doubt before as to whether this theory had merit, the text of the ECRA clearly answers that question, stating plainly that the Vice President does not have such power. Directly responding to the theory of substantive Vice Presidential authority, the law now explains that the Vice President “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the … appointment of electors, the validity of electors, or the votes of electors.” Vice President Pence fortunately rejected the legal theory that he had substantive authority, but future Vice Presidents (and the general public) will no longer be in any doubt. There will no longer be any incentive for the demonizations and threats that were directed at the Vice President two years ago.
Third, the ECRA eliminates the concept of “alternate slates” of electors. Under the old version of the Electoral Count Act, it was possible for different state officials to submit different slates of electors to Congress, forcing Congress to choose which slate was correct. It turns out that in several states that elected a Biden slate in 2020, the losing Trump slates nonetheless met on the day for casting electoral votes. These “fake slates” cast ballots as if they were the lawful slates, to preserve the possibility of later being chosen by Congress. Under the old Electoral Count Act, there was a real risk that such alternate slates could force Congress to choose between two slates, creating uncertainty and a lack of finality. But under the new ECRA, there is a clear method of identifying one and only one valid slate from each state: the slate certified by a state official previously given that authority, unless overruled by a court order.
Fourth, the ECRA eliminates language from the old Electoral Count Act that allowed a state to select its electors after Election Day if that state “failed to make a choice” on Election Day. That language was vague enough that some argued it allowed a state to redo its elections based on allegations of voter fraud. Now, however, the ECRA explicitly limits this option to when an extension of Election Day is “necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to” Election Day. This language makes clear that only physical disasters, not allegations of fraud, can be the justification for extending the voting period. The adoption of the legal term “force majeure,” a term limited to natural disasters, acts of war, or similar unforeseeable catastrophes, was made at the urging of my colleague Andy Craig and makes explicit that disputes over the conduct of an election cannot qualify.
These four crucial changes to the law of the electoral count mean that the electoral college process will stand on much safer footing two years from now than it did two years ago. While January 6, 2021 has left a painful legacy, one silver lining is that it prompted a successful reform effort that will improve our process for picking a president for decades to come.