Reforming the Electoral Count Act is a step in the right direction

by Jonathan Bydlak, Ryan Williamson, Matt Germer

The Electoral Count Act (ECA) has been in desperate need of reform since it was enacted in 1887. It was designed to resolve the crisis of the 1876 election, in which three states submitted multiple, competing slates of electors, and Congress had to decide which electoral votes should be counted. Unfortunately, Congress provided “clarity” about this issue with just a single paragraph of language–800 words combined into a string of confusing, run-on sentences—now codified into 3 U.S.C. § 15. This arcane statute largely stayed out of the public spotlight for over 130 years. That is, until President Donald Trump’s legal team attempted to leverage its ambiguity to foment turmoil following the 2020 election.

Fortunately, there now appears to be bipartisan support for reforming the ECA. A group of senators, led by Susan Collins (R-Maine) and Joe Manchin (D-West Virginia), have been working together to create ECA reform legislation that would remove ambiguities and prevent a future constitutional crisis.

While it is undoubtedly positive news that lawmakers are seeking to work across the aisle to fix a source of vulnerability in our electoral process, they must be wary to not just “fight the last war.” Instead, lawmakers should be proactive and reform the law with the future in mind, weighing trade-offs and preempting future difficulties in counting and certifying the electoral vote.

The first, and most important, component of meaningful ECA reform is limiting the power of the vice president in the counting and certifying of electoral votes. The executive branch has steadily grown in power over the course of American history, as Congress has become afraid of legislating and presidents have been more than willing to fill that power vacuum. The outcome of presidential elections should not be the source of yet another executive power grab. 

Politically motivated interpretations of the ECA have led to the rise of fringe theories that the vice president has the power to undermine the electoral college vote by unilaterally rejecting slates of electors and accepting alternatives. Therefore, any ECA reform legislation must clarify the power of the executive by formally defining the vice president’s role in counting and certifying votes as purely ceremonial. 

Additionally, ECA reform must also address when and how slates of electors may be rejected. Since the passage of the ECA, the certification of electoral slates largely has gone unchallenged, notwithstanding performative objections. Even in 2020, when President Trump pushed Republican majorities in key statehouses to submit alternate slates of electors, each state ultimately submitted just one formal slate. However, such adherence to norms is under threat. Gubernatorial candidates in key states like Pennsylvania and Arizona have rejected the results of the 2020 election, and uncontested certification and submission of a single slate of electors cannot be assumed in the future. Accordingly, ECA reform must provide clarity about how states certify, decertify and submit slates of electors.

Once the states have submitted their votes, Congress must have an effective and fair process for rejecting those votes when necessary. This is another area in which ECA reform legislation could provide more clarity. Currently, only one member from both the House of Representatives and the Senate are needed to object to certification, and it only takes a simple majority to affirm the objection.

Raising the threshold would make it harder for Congress to undermine a state’s electoral count, given how easy it can be to find two willing objectors out of a pool of 535 legislators, but the trade-offs must be acknowledged. Requiring a supermajority of Congress to agree to reject the results of a state could open the door for attention-seeking members to make frivolous arguments against certification, knowing the vote will almost certainly fail. These tactics are fairly common legislative practice already, and even more so when the House and Senate are controlled by opposing parties.

In the context of reforming the ECA, partisan objections to the electoral count would not only be performative grandstanding, but they would also create the perception that the election was decided not by voters but by a partisan Congress, further politicizing what should be an administrative exercise and casting doubt on the legitimacy of an election. This is an important trade-off that we hope Congress will consider as they work to reform the ECA.

It is also important to note that ECA reforms cannot stop all unscrupulous behavior by candidates and politicians. If a candidate or campaign is willing to sow doubt on an election’s legitimacy without evidence and with disregard for the law, reforming the ECA can only do so much. However, removing ambiguity can raise the costs associated with violating the ECA and make it more difficult to overturn the results of a lawful election. Congress must consider appropriate enforcement mechanisms to discourage those who would undermine the legitimate counting of votes.

Reforming the ECA won’t fix every problem related to federal elections, but it is an important step that curbs the further expansion of executive power and provides stability throughout a process fraught with partisan gamesmanship. Congress should act now, well before the 2024 presidential election cycle begins, but also make sure to use a delicate touch.