Buried in the year-end omnibus spending bill is Congress’s first sweeping attempt to prevent someone like former President Donald Trump from trying to steal a presidential election again.
The Electoral Count Reform Act (ECRA) — crafted by senators of both parties and endorsed by leaders Chuck Schumer and Mitch McConnell — clears up many ambiguities in US law about how the presidential result is determined, and creates new safeguards against interference with the results.
After Trump lost the key swing states in 2020, he worked feverishly to try to overturn Biden’s victories in those states. He pressured practically every institution or official with some role in the process — state legislators, statewide officials, members of Congress, and the vice president — arguing that those officials should throw out statewide results, rather than respecting them.
Designed specifically with Trump’s abuses of power in mind, the ECRA goes down that list of institutions and offices and tries to make it more difficult for any of them to corruptly overturn a state’s outcome. Here’s what it does.
What’s in the Electoral Count Reform Act?
The best way to understand what the reforms do is to walk through which institution or office involved in the vote count they’d affect, one by one.
State legislatures: Trump’s team hoped in 2020 that GOP-controlled state legislators would pass new laws awarding their states’ electoral votes to him, not Biden, and he called GOP legislative leaders to the White House to try to pressure them to act. No legislatures did in fact interfere with their state results, but fears rose that they could do so next time around.
So the ECRA stresses several times that states must appoint electors in accordance with state laws “enacted prior to election day” — no mischief allowed after the fact. States have to set the rules of the game before the election, and can’t change them afterward.
State officials: Trump pressured governors and other statewide officials not to certify results showing Biden winning or to overturn the outcome — most notably in Georgia, with his urging Secretary of State Brad Raffensperger to “find 11,780 votes” for him, and his attacks on Gov. Brian Kemp (R) for certifying the result. Again, they did not act — this time.
The ECRA clarifies that the executive of each state (the governor) has a “duty” to certify appointment of electors. But just in case an election-denying governor plans some shenanigans, the ECRA also says that federal courts have oversight over these certifications, and creates a special expedited process by which courts can quickly hear challenges, which could then rapidly be appealed to the Supreme Court.
Vice president: The vice president oversees the joint session of Congress on January 6 that counts the electoral votes. That role was long understood to be ceremonial, but Trump tried to pressure Vice President Mike Pence to make a power grab and throw out state results. Pence refused, but a future veep might well be more cynical or fanatical.
So the ECRA makes it unmistakably clear that the vice president’s role in counting electoral votes is “solely ministerial.” He or she “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes” over electoral votes, the bill says. That is, no vice president has the power to do what Trump wanted Pence to do.
Congress: When Congress did gather to count the electoral votes on January 6, 2021, Trump’s allies tried to take advantage of the process for lodging objections to state results, to delay the outcome. (If just one member of the House and one senator object to a state outcome, the joint session of Congress has to break up and each chamber had to debate and vote on the objection.) This effort was largely abandoned after a mob stormed the Capitol, but sufficiently motivated obstructionists could have delayed the results for many more hours — or even days — simply by making baseless objections.
There was also a hope from Trump’s team that, if Pence did refuse to count enough state electoral votes, Biden’s electoral vote count would have fallen below the majority (270) necessary to win, and the election would have been thrown to the House of Representatives to decide, voting by state delegations. (Republicans controlled more state delegations, even though Democrats had a House majority.) But Pence held strong, so this didn’t happen.
The ECRA changes the congressional process in several ways.
Second, the only permissible grounds for an objection are if the electors aren’t lawfully certified, or if an elector vote isn’t regularly given. And Congress must treat certifications from a state’s governor as conclusive except if courts say otherwise. This is at least an attempt to stop far-fetched objections being made as political statements, as Republicans did in 2020 and Democrats did in 2016 and 2004.
Third, if some electoral votes aren’t counted for whatever reason, the majority threshold for winning the presidency falls. To understand how this works, think about the 2020 result, where Biden won the electoral vote count 306 to 232. If Pence or Congress threw out the results in Georgia, Arizona, and Wisconsin, Biden’s total would have dropped to 269 votes, and the election may have been thrown to the House even though he still led. Under the new standard, Biden would still win in this scenario, because he’s won a majority of the votes counted.
Will the Electoral Count Reform Act work?
The reforms here seem sensible and well-crafted overall. Yet there is a line of thinking that they may not truly succeed in their goals. As Politico’s Kyle Cheney wrote in January, it is not clear the current Congress can truly bind a future Congress. That is to say, if a future Congress simply ignored these provisions, the courts may not step in to enforce them. And there were already questions about whether parts of the Electoral Count Act — the existing law that codified how Congress handles the vote count on January 6 — were unconstitutional.
Indeed, it is probably true that if a future Congress controlled by one party wanted to blatantly violate the law and steal an election, and that party was in near-total unity on that, they still very well could try, and might well get away with it.
But what the reforms really do is give a great deal of cover to people in the party who may be reluctant about election theft, but who are facing political pressure to go through with this. Ambiguities in existing law Trump and his allies sought to exploit with self-serving legal interpretations have now been cleared up. So Republican state legislators, governors, members of Congress, and the vice president can now tell a future Trump, “Sorry, my hands are tied. I can’t do what you want. The law says so.”
That’s hugely important, because as I’ve written, the main reason Trump failed to steal the election in 2020 is because enough Republican officials in these positions of authority over the results opposed his effort or at least refused to act affirmatively in support of it. Yet if the GOP continues to move right and in a pro-Trump, democracy-skeptical direction, that outcome is not guaranteed. The system only works if enough people in power agree to let it work. So the ECRA matters because it will likely help bolster the “election respecters” in the GOP, setting out rules and precedents that they may feel bound to follow, despite pressure to do otherwise.
Andrew Prokop
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