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Better a Century Late than Never

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Better a Century Late than Never

A bipartisan group of senators proposes commonsense reforms to the Electoral Count Act. July 26, 2022
Politics and law

After months of negotiations, a bipartisan group of 16 senators presented legislation last week to reform the Electoral Count Act of 1887, the statute whose ambiguous and confusing provisions Donald Trump and his supporters had exploited to argue that the results of the 2020 election could be set aside. Among two draft bills presented by the group of nine Republicans and seven Democrats, the proposed Electoral Count Reform Act aims to clarify the procedures for, and the roles of, officials involved in counting the votes of presidential electors. Though imperfect, the draft would largely remedy the ECA’s century-old deficiencies, providing far greater clarity and predictability and all but ensuring that the post-election events of 2020 will not recur. It has rightly drawn praise from academics, conservatives, libertarians, and progressives.

Counting the votes of presidential electors has vexed the United States since its early days. With the Twelfth Amendment, ratified in 1804, the fledgling nation attempted to regularize the process of electing the president and vice president. Among other things, the amendment requires electors to submit to the president of the Senate (almost always the vice president) certified lists, under seal, of candidates for president and vice president, specifying the number of votes for each. Next comes a somewhat cryptic command: “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.” That left open several questions: What happens if multiple lists come from the same state? Who actually counts the ballots? And does the vice president, acting as president of the Senate, merely play a ceremonial role during the count, or does he have substantive authority to determine the validity of electoral votes?

These issues culminated in the tumultuous election of 1876, the contest between Rutherford B. Hayes and Samuel Tilden that ended two days before the March 4, 1877 inauguration and nearly ignited a constitutional crisis. Amid a backdrop of widescale fraud and suppression efforts aimed against newly enfranchised blacks, four states—Florida, Louisiana, South Carolina, and Oregon—submitted to Congress competing slates of electors. In Florida, the secretary of state certified the Republican certificates, while the attorney general certified the Democratic ones. Congress was forced to adjudicate which slate to accept, a prospect fraught with the potential for civil violence. Eventually, the impasse was settled through a congressional commission and a backroom deal. The 185–184 electoral vote remains, to this day, the closest in American history.

The Electoral Count Act of 1887 was the well-intended fruit of this election, though one that took a decade to ripen—and by that time, it had largely spoiled. The ECA’s drafters sought to prevent the perils of an 1876-like election through several mechanisms. First, the law provides a “safe harbor” for a state’s votes that were made pursuant to state laws that were enacted prior to Election Day and establish a “final determination of any controversy or contest” surrounding the appointment of electors. If such a process in fact yields a final determination at least six days before the day the Electoral College meets to cast its ballots, Congress is to defer to the state’s ascertainment of its electors, unless both houses agree to reject the votes. In essence, this provision encourages states to adopt laws spelling out a process for recognizing valid electors, allowing disputes to be resolved at the state level. Congress, in turn, would get out of the business of resolving fraught disputes over the validity of state electors. Yet the ECA does not explain how Congress awards safe-harbor status or under what circumstances it would apply. As a result, the safe harbor has been used extremely infrequently, playing an important role only in the 2000 Bush v. Gore decision.

Second, the ECA provides that governors must send, under seal, a certificate of their state’s final appointment of electors to the U.S. archivist “as soon as practicable” after electors are appointed. This provision sought to hold a politically accountable state official responsible for validating the results of that state’s election, again taking decision-making over states’ disputes out of Congress’ hands. It also reduced the chances that other high-ranking state officials would submit competing slates of electors.

Third, if a state “failed to make a choice” on Election Day, the law allows its electors to be appointed in a manner prescribed by the state legislature. Again, the ECA does not define the circumstances that would constitute such a “failed” election. Evidence from the statute’s legislative history suggests a high bar—a major natural disaster or emergency—that would sufficiently disrupt the people’s opportunity to take part in the vote. Trump’s supporters latched onto this language, seeking to transform intimations of voter fraud into full-blown “failure” and thus to allow the legislature to set aside the popular vote and select an alternative slate of Trump electors.

Fourth, the ECA spells out a series of four nearly indecipherable counting rules for electoral votes, which were designed to govern in the event that the state failed to pass or use its own election-dispute law. Ambiguities and confusions abound under even the most straightforward case, where a state submits a single, governor-certified slate of electors: Congress would be required to count those votes, unless both houses concurrently reject them, on the vague grounds that they were not “regularly given” or that electoral appointments were not “lawfully certified”—terms left undefined in the statute. “Regularly given” reappears in two other counting-rule scenarios, each pertaining to situations where multiple slates of state electors purport to be authoritative.

Finally, the law provides procedures to be used during the January 6 joint session of Congress, a date fixed by statute, during which electoral votes are counted and the winners officially declared (this precipitated the tumult in 2021). The vice president, as president of the Senate, “preserves order” and opens all “certificates and papers purporting to be certificates of the electoral votes” in alphabetical order of the states. He hands them to four tellers (members of Congress appointed by both houses), who read aloud, count, and tally the votes. The vice president then calls for objections. If only one member of the House and one member of the Senate object in writing immediately once a state’s certificate is read, then each house debates and votes on the objection. No further considerations of state certificates can resume until the count is addressed. Once complete, the vice president announces the decision of the chambers and the “state of the vote.” Left unclear is whether he can set aside some purported certificates in favor of others, or whether he merely presides ceremonially over the count.

As the elections of 2000 and 2020 demonstrate, the ECA buckles under stress. Both razor-thin margins and bad-faith attempts of political actors are enough to create significant uncertainty. 

The bipartisan proposal would make the system more robust to both challenges. Most fundamentally, it requires that presidential electors are to be appointed “in accordance with the laws of the State enacted prior to election day,” meaning that state officials cannot change election results after the fact. More pragmatically, it stipulates that the vice president’s role is “solely ministerial,” without “any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”

Under the reforms, a state’s governor (or another official as specified in state law) would be the only person who can certify and submit that state’s electoral votes. A governor could theoretically refuse to certify and submit a state’s vote, but that would likely contravene state law—meaning the provision renders the possibility of multiple slates of electors unlikely. 

Meantime, if a state fails to certify its electors by the deadline, a presidential or vice presidential candidate can seek expedited judicial review for claims under existing law by a federal panel comprised of one district court and two circuit court judges. The Supreme Court would directly hear any appeals of its decisions.

In addition, the proposed changes would increase the threshold for members of Congress to object to a state’s votes, from one from each chamber to one-fifth of each—87 representatives and 20 senators. Finally, the draft eliminates the ability for state legislatures to declare a “failed election,” instead giving legislatures the ability to move Election Day only under “extraordinary and catastrophic events as provided under laws of the State enacted prior to such day.”

Would a better reform be simply to repeal the entire ECA, as the Wall Street Journal’s editorial board suggested recently? Probably not. Doing so would restore the state of affairs that gave rise to the crisis of 1876. A law that spells out the process for counting electoral ballots and elucidates the Twelfth Amendment’s ambiguities seems necessary.

The draft bill largely achieves these goals. It doesn’t sweep too broadly, opting to focus on counting electoral ballots, while steering clear of such issues as voter access, suppression, or fraud. Neither does it infringe on the states’ prerogative to create their own laws regulating election disputes. This narrowness seems to have been the key to securing bipartisan support.

Even so, the proposed reforms allow some of the ECA’s weaknesses to remain on the books. The draft fails to explain the phrases “lawfully certified” or “regularly given,” a glaring omission that may leave the door open for governors to seize upon allegations of voter fraud—or voter suppression. Lawmakers should eliminate or define these terms to mean that electors have not acted mistakenly or fraudulently, and that they complied with formal and constitutional requirements, such as voting for a person who is eligible to become president. The one-fifth threshold to raise objections may render this point practically moot, but it would be better to correct the uncertainty.

Moreover, the law treats the governor’s certificate as “conclusive,” but then declares that certificates “required to be revised by” court decisions will be replaced and superseded by court-issued certificates, presumably in the period between certification and when electors gather. “Conclusive” generally means “absolutely final,” so the draft’s language would be improved by specifying the degree of irrefutability or the conditions under which a rogue governor’s certificate could be supplanted by court order.

Nevertheless, the proposed reforms streamline the ECA while maintaining its spirit. They leave decision-making and authority almost entirely in the hands of the states, subject to meaningful checks on malfeasance. When stakes are high—and they don’t get higher than in presidential elections—clarity, predictability, and regularity become paramount. The Electoral Count Reform Act would go a long way toward achieving those vital ends.

Photo by Kent Nishimura / Getty Images

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