How to Fix the Electoral Count Act

The Elect­oral Count Act governs the process for how the Elect­oral College selects the pres­id­ent and vice pres­id­ent and Congress tallies elect­oral votes. The Janu­ary 6 hear­ings, includ­ing the explos­ive testi­mony of former White House aide Cassidy Hutchin­son, have shown how the law’s often confus­ing proced­ures were exploited by Pres­id­ent Trump and others to try to disrupt the peace­ful trans­fer of power, culmin­at­ing in the viol­ent attack on the Capitol on Janu­ary 6, 2021.

Congress must take advant­age of bipar­tisan momentum to address the Elect­oral Count Act’s vulner­ab­il­it­ies as soon as possible. Changes must address the full range of prob­lems with the law, includ­ing vague provi­sions that could make it easier to tamper with future pres­id­en­tial elec­tion results in the states.

At the same time, fixing the Elect­oral Count Act is not remotely suffi­cient to protect our demo­cracy. Not only does the law apply only to pres­id­en­tial contests, it simply has no bear­ing on many of the most signi­fic­ant ongo­ing threats arising from the false­hoods that fueled the assault on the Capitol — includ­ing rampant attacks on elec­tion work­ers, ongo­ing efforts to manip­u­late vote count­ing processes, and the record number of new voter suppres­sion laws.

Fixing the Elect­oral Count Act is a neces­sary and import­ant step, but it is no substi­tute for broader national safe­guards.

What are the Elect­oral Count Act’s key provi­sions?

The Elect­oral Count Act governs the process for appoint­ing elect­ors for pres­id­ent, certi­fy­ing and trans­mit­ting elect­oral votes to Congress, open­ing and count­ing the votes, and the resol­u­tion of disputes.

Under Article II of the Consti­tu­tion, states determ­ine how elect­ors for pres­id­ent are appoin­ted — currently, all 50 states and the District of Columbia select elect­ors by popu­lar vote. The 12th Amend­ment requires elect­ors to meet after the elec­tion in their respect­ive states to cast their votes, which are then trans­mit­ted to Congress to be opened by the vice pres­id­ent in a joint session.

To win, a candid­ate must receive “a major­ity of the whole number of Elect­ors appoin­ted.” If no ticket receives a major­ity, the House selects the pres­id­ent with each state deleg­a­tion receiv­ing one vote, and the Senate selects the vice pres­id­ent.

What does the Elect­oral Count Act say about the appoint­ment of elect­ors?

The Elect­oral Count Act specifies that elect­ors shall be appoin­ted in each state on Elec­tion Day, which since 1845 has been the first Tues­day follow­ing the first Monday in Novem­ber of a pres­id­en­tial elec­tion year. But if a state has “failed to make a choice” on Elec­tion Day, the law author­izes its legis­lature to select an altern­ate date for choos­ing elect­ors “in such a manner as the legis­lature of such State may direct.” States may also fill any vacan­cies among their elect­ors “by law.”

The Elect­oral Count Act provides no other explan­a­tion for what these provi­sions mean. However, experts have noted that they should be inter­preted narrowly, as they date back to a time when states used differ­ent meth­ods to select elect­ors, such as runoff elec­tions.

Elect­ors’ appoint­ments must be rati­fied through a “certi­fic­ate of ascer­tain­ment” issued by the state’s “exec­ut­ive” — usually its governor or secret­ary of state, depend­ing on state law — who also is the one to trans­mit the state’s votes to the arch­iv­ist of the United States, who in turn trans­mits them to Congress.

What does the Elect­oral Count Act say about the elect­ors’ cast­ing of votes?

The Elect­oral Count Act requires elect­ors to meet in their home states and cast their votes “on the first Monday after the second Wednes­day in Decem­ber” follow­ing the elec­tion. So long as a state resolves any contro­versy regard­ing the outcome of the elec­tion six days before the Elect­oral College meets (known as the “safe harbor” dead­line), the law treats the state’s appoint­ment of elect­ors as “conclus­ive.” A slate final­ized within the safe harbor can still be rejec­ted by Congress, but the law’s text has been inter­preted to mean it will take preced­ence over slates that did not comply with the safe harbor.

What does the Elect­oral Count Act say about the proced­ure for count­ing votes in the joint session of Congress and the vice pres­id­ent’s role?

The Elect­oral Count Act sets forth proced­ures for elect­oral votes to be opened and coun­ted in a joint session of Congress on Janu­ary 6 follow­ing the pres­id­en­tial elec­tion. In addi­tion to open­ing ballots as required by the 12th Amend­ment, the law assigns the vice pres­id­ent to preside over the session, but it provides little detail about the extent of their duties.

The Elect­oral Count Act permits members of Congress to object to votes on two grounds: if a vote was not “regu­larly given” or if an elector was not “lawfully certi­fied.” There is no addi­tional explan­a­tion of what those grounds entail, although there is ample evid­ence they were inten­ded to be narrow. Never­the­less, an objec­tion only requires support from one senator and one repres­ent­at­ive to be considered. Where a state certi­fies a single slate of elect­ors and both cham­bers vote to sustain objec­tions to all or part of the slate, the relev­ant votes are not coun­ted, increas­ing the chance of no ticket receiv­ing a major­ity and the pres­id­en­tial elec­tion being thrown to the House.

Where a state certi­fies multiple slates of elect­ors, as has happened at least five times in U.S. history, the slate accep­ted by both cham­bers will be coun­ted. If the House and Senate disagree, the Elect­oral Count Act requires Congress to count the slate that “the exec­ut­ive of the state” has certi­fied. There is no provi­sion deal­ing with what happens if differ­ent exec­ut­ives — such as a governor and an inde­pend­ently elec­ted secret­ary of state — certify differ­ent slates.

How was the Elect­oral Count Act connec­ted to the Janu­ary 6 insur­rec­tion?

The attack on the Capitol was the culmin­a­tion of a monthslong effort to over­turn the 2020 pres­id­en­tial elec­tion result. The campaign began with misin­form­a­tion-driven efforts to delay and disrupt the tally­ing of votes and certi­fic­a­tion of elect­ors in key states, includ­ing the filing of dozens of frivol­ous lawsuits. Trump himself pres­sured state offi­cials, includ­ing the secret­ary of state of Geor­gia and state legis­lat­ive lead­ers in Arizona and Michigan, to set aside elec­tion results in their states, declare Trump the winner and appoint his elect­ors.

After these attempts failed, Repub­lic­ans in seven states still claimed that they were the proper elect­ors in their states and signed false certi­fic­ates purport­ing to cast their states’ elect­oral votes for Trump. Former law professor John East­man proposed that Vice Pres­id­ent Mike Pence, in his role as presid­ing officer during the joint session on Janu­ary 6, could unilat­er­ally count these false slates or refuse to count the duly certi­fied slates for Joe Biden to deprive him of a major­ity and throw the pres­id­en­tial elec­tion to the House.

The Janu­ary 6 commit­tee hear­ings have revealed that East­man knew at the time that his propos­als were illegal. Nonethe­less, Trump cham­pioned them, publicly encour­aging Pence to reject the actual elec­tion results. Pence’s refusal enraged the insur­rec­tion­ists who stormed the Capitol, some of whom set up a make­shift noose and chanted “hang Mike Pence.”

Even after the storm­ing of the Capitol, when the joint session resumed, minor­it­ies in both cham­bers of Congress still suppor­ted base­less objec­tions to elect­oral slates from key swing states. (Several of those members were recently revealed to have pree­mpt­ively sought pres­id­en­tial pardons from Trump.) Today, there are still misin­form­a­tion-driven move­ments to “decer­tify” the results in these states, part of a much wider elec­tion sabot­age campaign in the states.

How could the Elect­oral Count Act be used to under­mine future elec­tions?

As Trump’s failed pres­sure campaign target­ing state offi­cials under­scores, the most potent threat to the orderly trans­fer of power is not disrup­tion of the joint session itself, but malfeas­ance in the states before­hand.

Experts agree that the Elect­oral Count Act does not author­ize state offi­cials to arbit­rar­ily set aside elec­tion results and that doing so would be illegal. But unscru­pu­lous actors may still try to exploit the law’s vague provi­sions — espe­cially those allow­ing a state legis­lature to appoint elect­ors if the state “fails to make a choice” on Elec­tion Day and fill elector vacan­cies “by law” — to justify tamper­ing with pres­id­en­tial elec­tion results. Many state legis­lat­ors have in fact expressed sympathy or outright support for claims the 2020 elec­tion was stolen, as have a number of lead­ing candid­ates for governor and secret­ary of state in key swing states — making the cent­ral role the law assigns to a state’s “exec­ut­ive” another poten­tial source of mischief.

How can Congress fix the Elect­oral Count Act?

A number of bipar­tisan and nonpar­tisan groups, as well as key senat­ors and the chair of an import­ant House commit­tee, have released reform propos­als shar­ing many common elements. Effect­ive Elect­oral Count Act reform must have several compon­ents.

First, the law must expli­citly confirm that the vice pres­id­ent does not have the power to alter the elect­oral vote count.

The rules for objec­tions must also be over­hauled. Ideally, revi­sions would reaf­firm that the grounds on which Senate and House members may object are narrow. They should also set a reas­on­able minimum threshold of support for any objec­tion to be considered. If Congress does sustain an objec­tion and disqual­i­fies a slate of elect­ors without accept­ing another slate, the total number of votes needed for a major­ity under the 12th Amend­ment must be corres­pond­ingly reduced.

Further, Congress must clarify the rules around the appoint­ment of elect­ors. It should replace the vague language about “failed” elec­tions with clearer language estab­lish­ing that elect­ors may only be selec­ted after Elec­tion Day in very excep­tional circum­stances that make voting impossible, like a major natural disaster, and that the default remedy in such instances is to extend voting in affected areas, not to redo the elec­tion or appoint elect­ors by some other means.

Congress must also take other steps to counter after-the-fact tamper­ing with pres­id­en­tial elec­tion results. It should specify that elector vacan­cies must be filled accord­ing to the law as it exis­ted prior to Elec­tion Day. Simil­arly, the iden­tity of the state “exec­ut­ive” who has the power to certify the appoint­ment of elect­ors should also be determ­ined by state law as it exis­ted prior to Elec­tion Day.

It also is crit­ical that Congress, while not invit­ing frivol­ous litig­a­tion, make clear provi­sion for legal actions to require certi­fic­a­tion of valid pres­id­en­tial elec­tion results and to set aside unlaw­fully certi­fied slates of elect­ors (for example, a slate that is certi­fied before all votes are coun­ted).

Is fixing the Elect­oral Count Act enough to safe­guard our demo­cracy?

No. Elect­oral Count Act reform is a neces­sary but incre­mental solu­tion, one that will primar­ily clarify exist­ing legal require­ments to one aspect of the pres­id­en­tial elec­tion process. Broader changes are needed to truly protect against ongo­ing anti­demo­cratic efforts to subvert our elec­tions. These protec­tions include baseline national stand­ards to secure the right to vote and protect against elec­tion sabot­age, restor­ing the Voting Rights Act’s curbs against voting discrim­in­a­tion, better safe­guards for elec­tion work­ers, and much more.

It is possible that some relat­ively minor addi­tional changes may be passed along­side changes to the Elect­oral Count Act itself. But no incre­mental pack­age is a substi­tute for compre­hens­ive reform. The Free­dom to Vote: John R. Lewis Act, which passed the House but was narrowly defeated because of the fili­buster earlier this year in the Senate, would have addressed many of the major prob­lems our demo­cracy faces. Passage of that bill or one like it must remain the long-term goal.