Last week, the Democratic majority for the Committee on House Administration released the first concrete step towards reforming the Electoral Count Act, with a comprehensive report outlining the ECA’s history, the case for reform, and a list of recommendations. Interest is especially high now that the Democratic push for broader and more controversial election and voting bills appears to have met its final fate in the Senate. A bipartisan group of senators led by Sen. Susan Collins (R‑ME) has been meeting to discuss the way forward on the ECA.
The Committee on House Administration’s staff report, commissioned by committee chair Rep. Zoe Lofgren (D‑CA), is an excellent starting point for the discussion. It is thoroughly researched, thoughtful in its analysis, and its recommendations are largely aligned with our own suggestions about what ECA reform should look like.
Major points of agreement include raising the threshold for making an objection, which forces Congress to divide back into their separate chambers for two hours of debate and a vote. Currently, that process can be triggered so long as one member from each chamber requests it, an invitation for ill‐founded grandstanding. The committee suggests one third of each house, which might be a bit high, but the exact number is less important than making sure an objection has some real and significant level of support before it can cause a delay in the proceedings.
The other big idea is to create an exhaustive list of valid grounds for objections. This builds on the principle that Congress has a limited role when canvassing the results of the Electoral College and should not sit in judgment of the underlying popular elections in each state. Such a provision would make clear that outside of a narrow list of fairly technical reasons, any other grounds for objection would be out of order. Limiting the grounds for objections is the most important reform idea to prevent Congress from second‐guessing election results and to shut down the escalating tit‐for‐tat of baseless objections over matters far beyond Congress’s proper authority.
The report also recommends moving the date that the electors meet to cast their votes later in the calendar, from mid‐December to perhaps late December or early January. By giving states more time to certify their list of electors, this change would allow the courts more time to resolve any post‐election legal issues. Perhaps just as importantly, granting the courts more time would reduce the appearance that post‐election litigation is an overly‐rushed and imprecise process, creating more confidence in the final results.
Along with these major items, the committee staff also recommend clarifying how to calculate the denominator for determining what constitutes a winning majority of the votes; narrowing the provision for a “failed” election to cover only major natural disasters and the like; and clarifying the scope of what it means to define election day, so that states are not hindered from counting early votes or going through post‐election administrative processes. These are all good ideas, though the report is a bit too dismissive of the possibility that states might choose to conduct runoff elections for president and how that would need to be accommodated, even though none currently do.
There are a few other things worth flagging in the report as possible disagreements or which merit further consideration.
The recommended list of valid grounds for objections includes a blanket provision for corruption. If this is included, it must be narrowly tailored to cover only literal bribery, something that has never actually happened in the Electoral College’s history. More importantly, an unbounded provision for challenging “corruption” could open the door to the very kinds of illegitimate objections ECA reform is intended to prevent. The Supreme Court in 2020 addressed this concern in Chiafalo v. Washington, which upheld state laws against so‐called faithless electors. The issue of bribery was raised during oral arguments, and it was affirmed that the states’ power to bind electors also allows states to punish and replace electors for taking bribes. If the states can handle corruption issues as part of their process of appointing electors, Congress need not worry about it and should instead simply take the electoral votes as sent to them by the states. The same point applies to faithless electors: states are free to make their own policy judgment about whether they wish to have enforceable laws binding their electors’ votes to their respective party’s candidates. Congress should respect the outcome of that decision either way.
Along the same lines, the report also suggests that the valid grounds for objection might include that a state has failed to maintain a republican (with a small “r”) form of government and thereby forfeited its right to cast electoral votes. While the Constitution does task the federal government with guaranteeing that each state maintains a republican form of government, the electoral count is not the place to invite enforcement of that clause. Opening that door could allow vague, broad‐based objections to the conduct of the general election, couched in allegations that the manner in which a state carried out its election did not meet minimum standards of republicanism.
The report similarly suggests that a valid objection might be based on Section 2 of the Fourteenth Amendment. That long‐unenforced clause tasks the Census Bureau with reducing a state’s congressional delegation as a penalty for disenfranchising its adult male citizens. While enforcing Section 2 is a worthy goal, the electoral count is not the place to do it. Section 2 raises many difficult questions as to what counts as an abridgement of the right to vote, and Congress is not equipped to resolve those legal and factual questions during a brief period of debate. Inviting such objections would again open the door for objections to the manner in which a state conducted its election.
The committee’s recommendation also includes permitting objections to the constitutional eligibility of candidates for president or vice president. This is correct and the classic case of something that is Congress’s job to handle. However, the Twentieth Amendment creates a complication that the committee’s report does not address. That amendment speaks of the possibility that someone could be elected president but nonetheless have “failed to qualify.” In other words, the president‐elect could be ineligible for not being over 35 years old or a natural‐born citizen as the Constitution requires.
To properly handle this scenario, Congress must still count the votes for ineligible candidates. That’s important because the possible outcome in that case is different from other sorts of objections. If an ineligible candidate has received a winning majority of the electoral votes, the presidency passes to the vice president‐elect under the Twentieth Amendment. Discounting the votes of the ineligible winning candidate entirely would violate the Twentieth Amendment’s succession rule and improperly trigger a contingent election in the House under the Twelfth Amendment. The process for handling eligibility objections could otherwise be the same as other objections, but this difference in outcome should be made clear to avoid a conflict with the Constitution.
On the role of the vice president, there is broad agreement that Mike Pence got it right and the ECA should reflect this: the vice president has no unilateral authority under the Constitution to decide which votes should be counted. The report goes a step further and proposes that the vice president shouldn’t preside over the joint session at all, and instead should only perform the constitutionally mandated function of opening the envelopes sent from the states. This would be permissible, but we’re not convinced it’s necessary to upset a longstanding tradition that has some value to it. Among others, Al Gore in 2000 and Richard Nixon in 1960 presided over the certification of their own defeat, as did Pence for the vice‐presidential race in 2020. This should be considered more of a feature than a bug, as it provides an important symbolic affirmation of the peaceful transfer of power and of the losing party’s acceptance of its defeat. The proposed alternative, the president pro tempore of the Senate, is no less of a partisan figure than the vice president. Better to have a provision making clear that the presiding officer, whoever that is, has no power to reject votes or alter the proceedings.
Lastly but most substantively, the committee suggests requiring a supermajority threshold, such as two thirds in both houses, to sustain an objection. This has some intuitive appeal in requiring bipartisan agreement, but there are reasons to be skeptical. Congress’s hands shouldn’t be too tied if there is a legitimate need to act because the states or the electors have broken clear constitutional rules. There is also a strong constitutional argument that determined simple majorities could at any time invoke the nuclear option, so to speak, and adopt a concurrent rules resolution changing any of the rules of procedure laid out in the ECA, including lowering the threshold back to a simple majority. Imposing a statutory supermajority requirement increases the odds that this disputed constitutional question could one day be determinative of an election’s outcome. Creating the risk of such a crisis is not necessary to adequately reform the ECA. Raising the number of members needed to make an objection and limiting the grounds for objections are likely sufficient without wading into the thorny territory of requiring supermajorities by statute.
These, however, are all relatively minor points to be hashed out as the process moves forward. A bill based on the committee’s report would be a vast improvement over the status quo, and there’s nothing here that should be an insurmountable hurdle for Republicans. Given the bipartisan support and demonstrable urgency of fixing the ECA, Rep. Lofgren and her committee staff have provided a very good place to start.
