They’re Finally Plugging Holes in the Electoral Count Act, and That’s Great News

Photo: Erin Schaff, AFP via Getty Images

Laws from the late 1800s keep popping up to bite us over 150 years later, from state abortion bans that sprang back into effect after Roe was overturned to the Electoral Count Act (ECA) of 1887, a law so poorly worded, convoluted and ambiguous that its exploitation facilitated a coup attempt on January 6, 2021. But we can all rest a bit easier after news broke yesterday that a bipartisan Senate bill, which in large measure tracks a House bill that narrowly passed, likely will fix some of the biggest problems with the ECA.

If you recall, former president Trump, his lawyers including John Eastman, and a handful of Trump’s Congressional allies sought to overturn the result of the 2020 election by having former vice-president Mike Pence simply announce that there were “disputed” elections in the swing states and that, therefore, he was simply going to disregard those results and either declare Trump the winner or “send it back to the states” to get it all sorted out. To support this move, the Trump campaign organized slates of “fake electors” to be submitted to Congress so that Pence would have some colorable assertion that there were competing slates. The move was anti-constitutional and illegal yet “justified” by people like Eastman through his own tortured reading of the ECA (which even he privately admitted would get him no votes in favor with the Supreme Court).

So what got fixed? It’s helpful to go way, way back and look at what the ECA was supposed to help prevent from happening and then see how 2020 gave us a roadmap into what still needed to be reformed.

The ECA of 1887

The election of 1876 was a shitshow. If you think ours in 2020 was bad, that election also had widespread allegations of fraud, violence and voter disenfranchisement—but in that case much of it was true. Four states, including three southern states, actually wound up sending competing slates of electors to Congress that would tip the election either way. The government was paralyzed by this until a compromise was finally reached tipping the election in favor of Rutherford Hayes—but it meant the end of federal troops in the South and the beginning of a decades-long period of violent oppression and Jim Crow laws for Blacks across the former Confederacy.

To keep this from happening again, Congress passed the ECA ten years later to set up a process and timeline for the Electoral College and a “safe harbor” date for the states, after which Congress was supposed to treat their electoral vote as conclusive. They also tried to address the question of competing slates and a put in place process for counting the electoral votes, including a way for Congressmembers to object. Under the ECA, it currently only takes one senator and one representative to object in order to send both chambers into debate and a vote. And that is a recipe for chaos, given that a vote in favor of sustaining the objection by both chambers could undo the entire election.

What Does the Electoral Count Reform Act Fix?

According to Democracy Docket, the Act addresses four major points:

• Requires that rules for selecting electors in each state be made prior to Election Day (can’t be undone after the fact, for example, by the state legislature unless they expressly give themselves this permission before Election Day);

• Clarifies that the vice president’s role is only ceremonial;

• Requires that 20 percent of members of both chambers object instead of just one from each to start debate; and

• Designates state governors as the sole state officials (unless otherwise specified by state laws) responsible for certifying electors, thereby making it far harder for a defeated presidential candidate to submit false electoral slates.

An amendment offered and accepted yesterday added the following protections:

• Makes SCOTUS review of any federal litigation over certification of state electors discretionary rather than mandatory;

• Ensures the Act’s judicial review procedure doesn’t exclude litigation in other state and federal courts; and

• Specifies that during the counting, Congress must treat the electors certified by a state and modified by any state or federal court relief as conclusive.

The fact that the Electoral Count Reform Act received 11 Republican co-sponsors and that Minority Leader Mitch McConnell has blessed it is heartening. And the fact that Sen. Ted Cruz was the sole vote against it in the 15 member Senate Rules Committee tells us that it likely is accomplishing its intended goal. 

The House version had a higher objection threshold of one-third of the members from each chamber, so that will have to be reconciled with the Senate threshold of one-fifth. The House bill was authored by two members of the January 6 Committee—Reps. Liz Cheney (R-WY) and Zoe Lofgren (D-CA)—and it passed with only nine Republicans voting in favor, none of whom is returning to Congress. Also very telling.

Trump has wasted no time using the reform of the ECA as evidence that what he tried to do in 2020 was somehow legal. But this argument isn’t persuasive. For starters, Eastman was arguing that the ECA was unconstitutional and could be ignored unilaterally by Trump. Also, clarifying an ambiguity in a law doesn’t mean you are conceding that it ever should have been construed to a nonsensical conclusion in the first place. Under Trump and Eastman’s reading of the law, for example, there would be no need for an election at all since all the power to declare the winner was left in the hands of the Vice President—who by the way was up for reelection. (It’s sometimes helpful to point out that in 2024, Republicans would never want Kamala Harrris to have the power to say Biden won, even if the electoral count said otherwise.)

The Electoral Count Reform Act can’t stop chaos from ensuing completely, but it will plug a lot of bad holes in the current law. Most importantly, it will help answer and respond to the dangerous theory currently gaining traction among extremists called the “independent state legislature” theory. That rather twisted interpretation of the U.S. Constitution asserts that state legislatures, without weigh-in by the state courts, can override the will of their states’ electorates because the Constitution gives the ultimate power to manage federal election to the state legislatures only. But even if that stretched interpretation were accepted, in the very same clause the Constitution also gives Congress the power to make or alter such regulations. Under the Electoral Count Reform Act, any state legislature at a minimum would need to give itself this usurping power far ahead of Election Day, and at least voters would have a chance to know about that ruse and pressure the government to stop that in its tracks.

The Electoral Count Reform Act will now be reconciled between its House and Senate versions and likely will be voted upon again in the months after the election. Passage is now quite likely. That will mean the states’ certifications will have to be accepted as confirmed by the state governors—meaning governor races are even more critical, especially in the swing states of Arizona, Michigan, Pennsylvania, Wisconsin, and Nevada where election deniers are running on the GOP ticket. Importantly, it will also mean that unprincipled men like Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO) won’t have the power to shake things up so easily in Congress come January 2025.