This page reviews and explains the recent reforms to the Electoral Count Act of 1887 (“ECA”) made by the Electoral Count Reform and Presidential Transition Act of 2022 (“ECRA”) and provides links to scholarly articles, opinion-editorials, podcasts, and congressional testimony concerning the ECRA.
On Thursday, December 29, 2022, President Joe Biden signed the ECRA into law. This came less than a week after Congress passed the 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 aims to close the electoral loopholes that came into focus on January 6, 2021. Specifically, the ECRA reforms and modernizes the vague and antiquated Electoral Count Act, the 1887 law governing the counting of Electoral College votes in Congress, to ensure states, Congress, or the Vice President cannot overturn the will of the people in presidential elections.
Originally introduced in July 2022 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, 2021. In August 2022, the U.S. Senate Rules and Administration Committee—the committee with jurisdiction over federal elections—held a bipartisan hearing on the bill, where witnesses on both sides of the political spectrum offered improvements to the legislation. Following the hearing, U.S. Senate Rules and Administration Committee Chair Amy Klobuchar (D-MN) and Ranking Member Roy Blunt (R-MO) reached an agreement with Senators Collins and Manchin on changes to the legislation, incorporating feedback from legal scholars and practitioners to further strengthen the integrity of the electoral count. In September 2022, the Senate Committee on Rules and Administration, in a 14-to-1 bipartisan showing, officially amended the ECRA.
In sum, the ECRA clarifies several ambiguities and potential vulnerabilities within the previous presidential election framework by:
First, § 109 of the ECRA, “Clarifications Relating to Counting Electoral Votes,” amends 3 U.S.C. § 15, “Counting electoral votes in Congress,” in its entirety, clarifying the Vice President’s “solely ministerial” role in counting Electoral votes. 3 U.S.C. § 15 lacked such clarity. It used language similar to that in the Twelfth Amendment, which states “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.”
Former President Trump and his lawyer exploited this lack of clarity in the days leading up to January 6, 2021. As the U.S. House Select Committee to Investigate the January 6, 2021 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. Notably, the Eastman Memo—authored by conservative lawyer John Eastman—set forth a six-step plan based on the premise that the vice president was the “ultimate arbiter” of the election and had power to delay Congress’s counting of Electoral College votes.
Section 109 of the ECRA closes this loophole by expressly stating the role of the vice president (the president of the Senate) is purely ceremonial:
“[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.”
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.”
Second, § 109 of the ECRA raises the threshold for members of Congress to object to electoral results. Previously, the ECA allowed only one representative and one senator to interrupt the joint session and force Congress to divide into separate chambers to debate and vote on their raised objection. This low threshold produced an “invitation for grandstanding” by fringe members of Congress. Further, 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.” As several witnesses testified during the August 2022 U.S. Senate Committee on Rules and Administration’s hearing, the ECA failed to define either “lawfully certified” or “regularly given.”
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.
Third, § 102 of the ECRA, “Time for Appointing Electors,” strikes 3 U.S.C. § 1, “Time of appointing electors,” and explicitly specifies that the executive of each state (i.e., the governor, unless the state designates another official in advance) must certify electors “in accordance with the laws of the State enacted prior to election day.” Section 102 works in tandem with § 104 of the ECRA, “Certification of Ascertainment of Appointment of Electors” which amends 3 U.S.C. § 5, “Determination of controversy as to appointment of electors” to limit the ability of states to manipulate its slate of electors after an election.
Under Article II of the U.S. Constitution, each state has the authority to determine the “Manner” for appointing presidential electors. Previously, a major concern amongst various legal scholars was that 3 U.S.C. § 5 could allow a “rogue governor” (or other state executive officials) to manipulate the electoral slate chosen on Election Day. Because the ECA did not specify which state executive must issue a certification, “dueling certifications—one from a governor, another from a secretary of state, [and] perhaps” one from the attorney general—could be sent to Congress for counting. In effect, this would leave Congress without a “clear process to determine which certificate is legitimate.”
But Article II also specifies Congress has the authority to “determine the Time” for choosing electors. Professors Bob Bauer and Jack Goldsmith contend that § 102 of the ECRA is not only “respectful of the state’s power over the manner of election, but also asserts Congress’s power over timing by making clear that it is the state law in place on Election Day that counts and binds state actors.” Accordingly, the ECRA addresses the “rogue governor” problem by (1) identifying a single executive official to issue and transmit the “certificate of ascertainment” of electors; and (2) prohibiting that official from certifying “the wrong candidate” since the outcome would “not be consistent with state election law in place” on Election Day.
Section 104 of the ECRA makes clear that the state’s executive of each state must certify the state’s appointment of electors (i.e., the state’s election results) to Congress at least six days before the Electoral College meets. Under the updated ECRA, Congress must treat the executive’s certification as “conclusive” unless a state or federal court has ordered that it be replaced or modified. In a scenario where a court has ordered that the certification be replaced or modified, such an order “supersede[s] any other certificates submitted.” In other words, Congress must treat the new or modified certificate as conclusive—with federal courts having the final say.
Fourth, the ECRA subjects these decisions to expedited judicial review. Previously, the ECA did not provide any role for federal courts in resolving disputes concerning a state’s electoral slate of electors. Under § 104 of the ECRA, however, challenges brought by presidential candidates pursuant to existing federal law have access to expedited procedure in federal courts. Notably, § 104 incorporates 28 U.S.C. § 2284 and provides for challenges to be heard by a federal three-judge panel composed of two federal appellate circuit judges and one district judge.
Additionally, the ECRA grants presidential candidates direct appeal to the U.S. Supreme Court via a petition for writ of certiorari. If the U.S. Supreme Court decides to hear the case, it must do so on an expedited basis “so that a final order of the court on remand of the Supreme Court may occur on or before the day the time fixed for the meeting of [presidential] electors.”
Fifth, § 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.” 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 obscure exception referred to as the “failed election” provision. Specifically, 3 U.S.C. § 2 allowed the legislatures of states that have “failed to make a choice” on Election Day to determine the “manner” for appointing their states’ electors. The ECA, however, failed to define what “failed to make a choice” means, creating opportunities for election subversion by bad-faith actors.
For example, 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 declare a “failed election,” throw out the popular vote, and appoint their preferred electors. Before the 2020 election, various legal scholars argued that a fair reading of 3 U.S.C. § 2 “would reject the idea that a state legislature can declare a ‘failed’ popular vote just because the legislature does not like the outcome that counting the popular vote produces.” These scholars pointed to congressional history demonstrating that 3 U.S.C. § 2 was adopted for two reasons: (1) to address differing laws among the states that might result in electors not being chosen by the end of Election Day; and (2) to anticipate natural disasters and other such emergencies that could prevent voters from reaching the polls on Election Day.
Despite these reassurances, after the 2020 election, legal experts across the ideological spectrum agreed that 3 U.S.C. § 2’s vagueness invited “all sorts of state legislative mischief” if state legislatures disliked an electoral outcome. For example, Edward B. Foley, an election law expert and Professor of Law at the Ohio State University, acknowledged that 3 U.S.C. § 2’s language “dangerously empowers state legislatures to choose a new method of appointing their state’s electors” erroneously. To address these vulnerabilities of the “failed election” clause, the ECRA, 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.”
“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.”
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 arguably forecloses potential avenues for election subversion by bad-faith state actors.
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. Read our staff’s analysis of the ECRA, as well as first-hand insights from Mr. Spaulding here: Sonia Montejano et al., Reforming the Electoral Count Act: A Conversation with Senator Klobuchar’s Policy Director of the U.S. Senate Committee on Rules and Administration, Fordham L. Voting Rts. & Democracy F. (Dec. 26, 2023, 1:00 PM).
Thomas A. Berry, Two Years After January 6, Electoral Count Act Reform Is Now Law, Fordham L. Voting Rts. & Democracy F. (Jan. 6, 2023, 4:00 PM).
Checks and Balances by the Economist: “Sitting Ducks” with Senator Angus King (Dec. 2, 2022)
The Dispatch Podcast: The Future of the Electoral Count Act (Sept. 30, 2022)
Here and Now by WBUR: What You Need to Know About the Deal to Reform The Electoral Count Act (July 21, 2022)
We the People by the National Constitution Center:
The Case for Reforming the Electoral Count Act: Part I (Jan. 14, 2022)
The Case for Reforming the Electoral Count Act: Part II (Aug. 16, 2022)
Cass R. Sunstein, The Rule of Law vs. “Party Nature”: Presidential Elections, the U.S. Constitution, the Electoral Count Act of 1887, the Horror of January 6, and the Electoral Count Reform Act of 2022, Bos. U. L. Rev. (forthcoming 2023). Read here.
Other Explainers & Reports:
National Conference of State Legislatures: What the Electoral Count Reform Act Means for States (Jan. 16, 2023)
Congressional Research Service: Elections and Voting: Policy and Legal Issues for the 118th Congress (Jan. 5, 2023)
Protect Democracy: Understanding the Electoral Count Reform Act of 2022 (Dec. 23, 2022)
Cato Institute: Senate Rules Committee Markup of the Electoral Count Reform Act (Sept. 27, 2022)
Bob Bauer & Jack Goldsmith, The Lessons of the Electoral Count Reform Act: Next Steps in Reform, Lawfare (Jan. 31, 2012, 8:31 AM).
Michael Waldman, Much Needed Reform for the Electoral Count Act, Brennan Ctr. for Just. (Dec. 23, 2022)
Andrew Prokop, The Bill to Prevent Trump From Stealing the Next Election, Explained, Vox (Dec. 21, 2022, 12:17 PM).
Norman Eisen et al., Democracy on the Ballot—Election Denial and the Electoral Count Act, Brookings Inst. (Nov. 1, 2022).
Senate Committee on Rules and Administration – Hearing on the Electoral Count Act: The Need for Reform
(Aug. 3, 2022)
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