The Electoral Count Act reforms, explained

The last presidential election nearly came down to whether then-Vice President Mike Pence would follow the law or former President Donald Trump. Congress doesn’t want to leave that to chance next time.

The House of Representatives on Wednesday passed a bill that would overhaul the Electoral Count Act, the law that dictates the process by which Congress certifies presidential elections. It’s the “most significant legislative answer yet to the riot and the monthslong campaign by Mr. Trump and his allies to invalidate the 2020 presidential election” reports the New York Times. But the bill’s passage also shows how election fairness has become a deeply partisan issue in America: Just nine Republicans voted for it.

With American democracy in a fragile state and the midterm elections — which could shift control of Congress back to Republicans — just weeks away, Democrats are running out of time to fortify the system against another effort to overturn a presidential election. Will the Electoral Count Act reform do the trick? Here’s everything you need to know:

What is the Electoral Count Act?

It’s a law passed about 10 years after the disputed 1876 election that gave the presidency to Rutherford B. Hayes, who had not won the national popular vote. “It essentially sets up a timetable for when different parts of the counting process must take place and sets up a dispute resolution process for how Congress will resolve irregularities in accepting electoral slates from states,” ABC News reported in January.

Was the ECA responsible for Jan. 6?

The law “invites misinterpretation,” Steven A. Siegel wrote in a prescient 2004 article for Florida Law Review. “The ECA is turgid and repetitious. Its central provisions seem contradictory. Many of its substantive rules are set out in a single sentence that is 275 words long.” 

That said, the ECA isn’t responsible for the events of Jan. 6 — that was a choice made by Trump and his followers. But the act’s vulnerabilities were easy to game. ECA “allows for just one legislator in both chambers to object to a state’s electors if their votes were not ‘lawfully certified’ or ‘regularly given, for instance, but it doesn’t clearly define those terms,” Bloomberg noted in an August editorial. And “while the text spells out the vice president’s duties in this process, and implies that this role is purely ceremonial, it fails to explicitly rule out any more substantive decision-making powers.” 

In 2021, the result of that vagueness was that Trump pressured Pence — in his role overseeing the final certification of the vote — to send the election back to the states, which would have caused chaos. Pence determined he didn’t have the authority to do so, a conclusion backed by most legal scholars. That didn’t stop Jan. 6 rioters from chanting “Hang Mike Pence” as they invaded the Capitol.

How does the reform bill fix these problems?

The new bill “would make it more difficult for members of Congress to muck up the certification process with objections that aren’t based on legitimate concerns,” NPR reports. (Under the current version of ECA, it takes just one member each of the House and Senate to challenge a state’s electors — the reform would raise that to 20 percent of the members of each chamber.) The act would also make clear that the veep’s role in the process is “strictly ministerial.” In other words: There won’t be any confusion about whether Pence’s successors have any power to much with the votes, either.

But the reforms, while necessary, can only do so much, the Brennan Center warns. Fixing the way Congress certifies elections “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.”

What Republicans voted for the bill?

You won’t be shocked to learn that Trump nemesis Rep. Liz Cheney (R-Wyo.) was a major force behind the bill. She was joined by GOP colleagues Adam Kinzinger of Illinois, Peter Meijer of Michigan, Tom Rice of South Carolina, Jaime Herrera Beutler of Washington, John Katko of New York, Fred Upton of Michigan, Chris Jacobs of New York, and Anthony Gonzalez of Ohio. All but Jacobs voted to impeach Trump after the insurrection.

“Most of these members have either lost their primaries or announced their retirements,” Politico notes. “Some of the retiring members were likely to lose their seats after defying Trump.”

Why did most other Republicans oppose it?

They saw it as an attack on Trump. “Unfortunately, there was no bipartisan effort to address the significant concerns that I and so many others have with the Electoral Count Act,” Rep. Jim Banks (R-Ind.) told HuffPost. “This is just yet another partisan whack at Donald Trump by his partisan enemies in Congress.”

What’s next?

There are already 10 Republicans lined up to support the Senate version of the act, enough to overcome a filibuster. “That bill has slight differences — such as only requiring a fifth of House members to sign onto an objection, rather than a third — but is broadly similar,” Axios reports.

The clock is ticking. Sen. Susan Collins (R-Maine) “said the Senate Rules Committee will mark up the Senate bill next week,” CNN reports. Still undetermined: Whether the vote will come before the midterm elections, or wait until the “lame duck” session afterward.

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