Last week, U.S. Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.Va.) released S. 4573, or the Electoral Count Reform and Presidential Transition Improvement Act, their long-awaited proposal to reform the Electoral Count Act of 1887 (ECA), an antiquated law that governs how Congress counts the Electoral College votes for president every four years. Former President Donald Trump’s efforts to overturn the results of the 2020 presidential election revealed several weaknesses in the law that could be exploited by a disgruntled and defiant presidential candidate. The proposed legislation purports to address those flaws. In today’s piece, we’re breaking down the Electoral Count Act, how Trump tried to exploit it and how a group of 14 senators hope to reform it.
What is the Electoral Count Act?
The ECA is a 19th-century law passed by Congress in response to the disputed election of 1876. That election, between former President Rutherford B. Hayes and Samuel J. Tilden, was marred by allegations of fraud, violence and disenfranchisement. Four states ended up sending competing slates of presidential electors to Congress and the U.S. Constitution did not give Congress any guidance on how to resolve the dispute. After the Compromise of 1877 decided the election in favor of Hayes, Congress recognized the need to add more clarity to the process of resolving election disputes.
After two more closely fought elections and several failed attempts at reform, Congress finally passed a bill to regulate how states finalize their election results in 1887. Under the ECA, the Electoral College (the group of people appointed by each state to elect the president), casts its votes on the first Monday after the second Wednesday in December following the presidential election. If a state has finalized its election results by six days before the Electoral College casts its votes, then that state’s results qualify for “safe harbor” status, meaning that Congress is supposed to treat those vote totals as the conclusive result. The law also includes a mechanism for Congress to decide which slate of electors is valid if a state sends multiple, like in 1876. Finally, the law lays out the procedures for Congress to count the electoral votes during a joint session on Jan. 6 — and gives members of Congress a way to object to a state’s electoral votes. If just one senator and one representative — regardless of the state they represent — object to a state’s electoral vote in writing, both chambers of Congress are required to debate and vote on the objection.
Almost since it was passed, the ECA has been criticized for being vague and confusing. The mechanism to decide between multiple slates of electors, for instance, was derided by a contemporary political scientist as “very confused” and “almost unintelligible” and by legal scholar Stephen Siegel as “repetitious” and “contradictory.” Most recently, Trump’s efforts to sow doubt into the results of the 2020 election it even happened brought renewed attention to the law and a fresh wave of criticism.
How did Trump try to exploit the ECA?
In the aftermath of the 2020 election, Trump and his allies used the ambiguities of the ECA to bolster their arguments that the results of the election could be overturned. The lack of clarity over the vice president’s role in the count fueled the pressure campaign on former Vice President Mike Pence to reject valid electoral votes. The guidelines for deciding between multiple slates of electors inspired Trump supporters to designate fake electors. Most notably, the mechanism to challenge a state’s electoral votes played a role in the Jan. 6 insurrection as Trump called on his supporters to pressure members of Congress to object to the electoral votes of several states.
What would the proposed bill do?
S. 4573, or the Electoral Count Reform and Presidential Transition Improvement Act, updates the ECA in several key ways by
- Mandating that rules for selecting electors in each state be made prior to Election Day,
- Clarifying that the vice president’s role in overseeing the counting of the electoral votes is only ceremonial,
- Raising the threshold for objections to a state’s electoral votes from just a single member of the House and Senate to 20% of both chambers,
- And designating the governor as the sole state official (unless otherwise specified by state laws) responsible for submitting a certificate of electors in order to make it harder for a defeated presidential candidate to submit false electoral slates.
The bill allows the presidential candidate who lost to challenge a state’s certification of electors in federal courts on an expedited basis. Challenges would be heard by a three-judge panel with the option of a direct appeal to the U.S. Supreme Court. Under the proposal, Congress is required to count the electors submitted by the governor or, if challenged, the electors judged by a court to be valid.
S. 4573 also repeals an older 1845 law that allows states to appoint electors after Election Day in case of a “failed” election. Because the law never defines what a failed election is, Trump supporters cited this provision when arguing that state legislatures could appoint electors in defiance of the popular vote.
A separate section of the bill updates the Presidential Transition Act of 1963 to allow multiple candidates to access funds and resources for their presidential transition in case of a disputed election. This came up most recently in 2020, when the Trump administration denied Biden’s campaign access to these resources for weeks after the election, but we also saw this happen in 2000 when the protracted election dispute delayed the transition and endangered U.S. national security.
What’s next in the bill’s path to passage?
Sen. Amy Klobuchar (D-Minn.), chair of the Senate committee with oversight over federal elections, announced that a hearing on ECA reform will be held within the coming weeks, the first step in the bill’s path to President Biden’s desk. While not a cosponsor of S. 4573, Klobuchar previously released draft legislation to update the ECA in February.
Right now, S. 4573 has only nine Republican cosponsors — one short of the ten required to overcome a filibuster, provided that all 50 Senate Democrats also support it. However, the bill’s supporters are optimistic that they can secure more Republican backing for a vote later this year. There’s also broad consensus among members of Congress that updates to the ECA are necessary and Senate Minority Leader Mitch McConnell (R-Ky.) has expressed openness to reform.
Another potential wrinkle is the ongoing investigation into the events of Jan. 6 by a U.S. House committee. Following the release of S. 4573, two members of the Jan. 6 committee, Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), released a statement indicating the committee would release its own recommendations on how to update the ECA, a suggestion the committee confirmed during its July 21 hearing. Even if S. 4573 passes the Senate, its passage in the House is not assured, which may have its own vision on how to reform the ECA. Finally, with the August recess and the upcoming elections looming, there’s not a lot of time left to enact the bill before a new Congress convenes next January.