Civics For Change: Reforming The Electoral Count Act

The events that transpired on January 6th, 2021 have forever changed the political landscape — and perhaps soon, the legislation — of our nation. Since former President Trump and his allies tried to exploit the Electoral Count Act of 1887 to alter the results of the 2020 Presidential Election, legislators have been looking to reform the ambiguities and close the gaps left open in the original Act of 1887. 

Even before the 2020 Presidential Election, former President Trump cast doubt on the integrity of the upcoming election. So when the day came to certify the votes, President Trump’s followers and lawyers were prepared to attempt to overturn the election. In a speech to a cheering crowd of protesters, he pressured former Vice President Mike Pence, saying: “Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country….and if you’re not, I’m going to be very disappointed in you.” 

Soon after, Vice President Pence released a statement declaring his role in overseeing the count of the electoral votes as “largely ceremonial,” indicating that he had no intention of intervening in the count. The unclear language in the Electoral Count Act of 1887 is part of what led President Trump, his lawyers, and the insurrectionists to believe overturning the results of the election was possible in the first place.

First, what is the Electoral College?

The Electoral College is a process written into our constitution to elect the president and vice president each election year. It consists of 538 electors, and each state has the same number of electors as it does Congressional Members, which equals one elector for each member in the House of Representatives, plus two Senators. Electors are chosen by each candidate’s political party in their state, then officially appointed as electors once voters elect their candidate at the ballot box through the popular vote. How electors then cast their votes is somewhat predetermined, as they are to vote for the candidate who won the popular vote in their state (However, there have been cases in which electors did not vote accordingly!). The only requirements for electors to be appointed are that they are not a Senator or Representative, and that they have not participated in an insurrection or rebellion against the United States. 

Electors travel to Washington, D.C. to cast their votes on January 6th. Each state’s electors’ votes are recorded on a Certificate of Vote, then are sent to a joint session of Congress where they are counted with NARA (the National Archives and Records Administration). Congress meets in the House Chamber to conduct the official count of electoral votes as the Vice President presides over the count, then finalizes the process by announcing the results of the vote and the President-Elect. 

What is the Electoral Count Act of 1887, and why does it matter now?

While the Electoral College has functioned largely the same way since its founding, the process of counting electors’ votes has always been riddled with conflict and confusion. The Electoral Count Act was created in 1887 after three closely fought elections to regulate how states finalize their election results, and has since governed how Congress counts electoral votes. It set a timeline for election results to be confirmed and designated the Vice President to oversee the count and announce the results. 

The Act also enabled members of Congress to object to any state’s electoral votes, requiring just one senator and one member of Congress to trigger a challenge — regardless of which state they represent. Since its creation, the Act has been criticized for its confusing and contradictory language. In 2020, former President Trump and his lawyers used the Act’s ambiguities to support their arguments that the election could be overturned.  

What are reform bills proposing to change about the Act?

On July 20, 2022, 16 Senators from both sides of the aisle introduced the Electoral Count Reform and Presidential Transition Improvement Act (ECRA). The ECRA would alter the requirement to 20% of each chamber to reject a state’s slate of electors instead of just one senator and one member of Congress. The bill aims to prevent members of Congress from making baseless objections to a state’s election results. The proposed bill would also clarify the Vice President’s role as strictly ceremonial in overseeing the counting of the electoral votes and announcing the election results. 

Next, the Senate Rules Committee marked up the proposal yesterday – Tuesday, September 27, 2022. Just yesterday morning, two senators introduced an amendment to their proposal to clarify language describing the process of Congress counting electoral votes.

Previously, the House of Representatives proposed a separate bill titled the Presidential Election Reform Act, and on Wednesday, September 21, 2022, it passed 229-203, with nine Republicans and all Democrats voting in favor. 

What’s the process for making reform law?

With both bills proposing similar reforms, both chambers of Congress will have to communicate and agree on one bill in order for it to get to President Biden’s desk to await his signature. As the Senate marked up the proposal yesterday, the next steps in the process of reforming the Electoral Count Act of 1887 are still unknown. 

What’s next?

We must reform the Electoral Count Act of 1887, which governs how the states count electoral votes and Congress certifies them, in order to uphold the will of the American people. At the same time, we must continue to call for federal voting rights legislation that will protect and expand our right to vote. 

If signed into law, a reform bill would close the loopholes left open in the Electoral Count Act of 1887 and will assist in safeguarding the will of the American people by preventing future candidates from attempting to overturn an election’s results. Call your Representatives and urge them to support reforming the Electoral Count Act of 1887 to help us to protect our democracy.

About The Author

Mia Matthews is the Program and Communications Manager at The Andrew Goodman Foundation. In her position, she works with student leaders and in communications surrounding their work. She currently lives in Orlando, Florida.