“Nothing is more essential to the survival of a democracy than the orderly transfer of power. And there is nothing more essential to the orderly transfer of power than clear rules for effecting it.”
That statement by Maine Sen. Susan Collins at a Senate Rules Committee hearing in August succinctly describes the importance of the Electoral Count Reform Act of 2022, which she co-authored with Sen. Joe Manchin. The bill became part of the government funding bill that Congress passed late last week. This landmark legislation updates the archaic and ambiguous Electoral Count Act of 1887, which governs how Congress tallies each state’s electoral votes for president and vice president.
As an election law scholar, I testified at that August hearing and suggested that Congress focus its reforms on a few crucial areas that could achieve wide bipartisan support. Sens. Collins and Manchin did just that. They garnered 37 co-sponsors from both sides of the aisle. I commend them and the Rules Committee leaders, Sens. Amy Klobochar and Roy Blunt, for their leadership and thoughtfulness.
“Legal theories floated after the 2020 election suggested ways to undermine the results of the election, culminating in a failed insurrection at the Capitol on Jan. 6, 2021,” election law scholar Derek T. Muller writes. Jose Luis Magana/Associated Press
The 1887 law was enacted in the aftermath of the contentious presidential election of 1876, in which neither candidate received a majority of uncontested electoral votes and multiple states submitted rival presidential election results to Congress. It was designed to simplify rules for counting electoral votes in presidential elections. That law served our nation reasonably well for 135 years.
But the known weaknesses in these rules have been exploited in states and in Congress to try to make something go wrong. Legal theories floated after the 2020 election suggested ways to undermine the results of the election, culminating in a failed insurrection at the Capitol on Jan. 6, 2021.
And in four of the past six presidential elections, the Electoral Count Act’s process for counting electoral votes has been abused, with members of both parties raising frivolous objections. But it took the violent breach of the Capitol to shine a spotlight on the need for reform.
The Electoral Count Reform Act will help ensure that electoral votes totaled by Congress accurately reflect each state’s popular vote for president and vice president. It reaffirms that the constitutional role of the vice president in counting electoral votes is that of a figurehead – the vice president has no power to determine whether to count a state’s electoral votes.
Before the Electoral Count Reform Act, it took just one member in each chamber of Congress to object to an elector or a slate of electors, delaying counting and threatening to reject a state’s popular vote. The new law raises the threshold to lodge an objection to a minimum of one-fifth of both the House of Representatives and the Senate, reducing the likelihood of future abuse.
The law also ensures that Congress can identify a single, timely and accurate appointment of electors. The legislation would create a firm date for states to certify election results. It limits potential mischief through expedited judicial review, and it places a clear obligation on state officials to submit accurate results to Congress. Finally, the law clarifies the scope of Election Day, ensuring that state legislatures cannot show up after the election to try to change the rules or appoint different electors.
There is an impressive amount of clarity and sophistication in a few pages of statutory text. It is sufficient to handle the pressing challenges in presidential elections, for this moment and for the future. It takes a 19th-century law into the 21st century.
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