As noted here, the bipartisan Senate working group led by Sen. Susan Collins and Sen. Joe Manchin have released their draft of a bill to reform the Electoral Count Act, dubbed the Electoral Count Reform Act of 2022 (ECRA).
Overall, it is a very solid proposal and would represent an immense improvement over the status quo. It tracks with many of the recommendations we’ve made at Cato, the work of other scholars and organizations, and includes some of the suggestions made in a Committee on House Administration staff report commissioned by Rep. Zoe Lofgren (D‑CA) earlier this year.
The whole exercise is largely one of Madisonian checks and balances: setting up guardrails to make sure the states, the courts, and Congress can each check the other two, while ensuring that each is also empowered in their proper spheres, to minimize the risk of partisan malfeasance at any stage of the process.
While this draft proposal is an important step, it is also important to note this will not necessarily be the final bill. There is still the process of a committee markup, which Sen. Amy Klobuchar has indicated will happen soon in the Senate. There is also still the House, where Rep. Lofgren and Rep. Liz Cheney (R‑WY) have indicated that they are working on their own proposals for ECA reform. That could involve both the January 6th Committee’s report and further action by the Committee on House Administration, which is the House’s committee of jurisdiction for election law matters.
With that in mind, here’s an overview of what the ECRA bill would do, the reasoning behind these changes, and a few areas of concern for potential improvements.
The Time of Choosing Electors
One of the biggest worries driving ECA reform is the possibility of rogue actors at the state level. The Collins-Manchin bill takes several steps to address that.
Most importantly, throughout the bill is inserted language about “state law enacted prior to Election Day.” This is a crucial change, because it shuts down any possible claim that state legislatures have the power to change the rules for selecting electors after the fact.
Constitutionally, it’s up to each state to decide how they want to select their members of the Electoral College, but Congress has the power to set the time of choosing electors. A key goal of ECA reform is to clarify how Congress has exercised that power, because it is the only substantive power Congress has over what is otherwise near-absolute state autonomy to decide how electors are chosen.
This bill also scraps the ambiguous “failed elections” provision in current law, which some have used to argue in favor of a post-Election Day power for state legislators to interfere. ECRA would instead require that a state’s provisions for handling “extraordinary and catastrophic” events disrupting the election must be set by state law prior to Election Day.
This is a good step, but the language could be tighter. I have suggested stronger language invoking the legal concept of force majeure, which is well defined and provides ample guidance for the courts, and also spelling out in more detail that only actual disruptions to administering the election can qualify. The “extraordinary and catastrophic” language in the Collins-Manchin bill is intended to convey the same idea, but might still leave too much wiggle room for spurious claims of fraud and disputes properly resolved in the courts. This provision should set a deadline for this extended process (such as the end of November), which is omitted in the current draft. It would also be reasonable to set some guidelines for who can make the determination that a sufficient catastrophe has occurred and how that decision can be challenged, while still generally deferring to the state law process as administered by the state’s executive branch.
But even with those caveats, the Collins-Manchin bill would leave no doubt that post-Election Day legislative selection of electors is not permitted under any circumstances. That’s because the deadline extension would only apply to states conducting a popular election for presidential electors, and would only authorize the continuation of a “modified period of voting” extending that same popular election process. State legislatures would have zero further say in the matter after Election Day, which is the correct constitutional result.
Rogue Governors
ECRA would also clarify the procedure for how states certify who they are appointing as their presidential electors. The status quo says simply that this must be done by “the executive authority” of the state, which is problematic because states can have multiple executive officials, such as both a governor and a secretary of state. ECRA provides that this certification will come from the governor by default, unless the state has previously opted to designate another officer. The goal is to ensure that there is only one definitive set of votes sent to Congress from each state, and Congress is not put in the position of choosing between multiple claimants.
The bill would also scrap the confused “safe harbor” provision and replace it with a clear deadline: states must certify their electors at least six days prior to when the Electoral College meets and votes. Failure to do so would trigger a process for expedited review by a three-judge panel in federal court, with possibly direct appeal to the Supreme Court.
Once a state has duly certified its choice of electors, in compliance with any possible court rulings, that selection “shall be treated as conclusive.” This is correct, but as covered in more detail below, this could use greater clarity as to what it means to be “conclusive” when it comes to the joint session of Congress.
Judicial Review
Who a state has appointed as its electors is a matter of state law as it stood on Election Day, as administered by state executive officials, with any disputes then adjudicated through the courts. It is emphatically not up to Congress to second-guess this outcome.
To that end, ECRA would create a backstop procedure to bind both the states and Congress: if a state has failed to certify its properly chosen electors in time, an aggrieved presidential candidate could seek relief before a panel consisting of one district court and two circuit court judges.
This provision would not create new grounds for litigation, nor would it exclude other litigation through the normal processes after Election Day. Rather, as a fail-safe, it would allow the courts a new procedure to quickly order that the correct electors receive their certifications in time for the Electoral College to meet and vote on the day prescribed (which the Constitution requires to be the same throughout the United States). This allows Congress to later rely on this determination, and it also provides the courts with clear instructions to resolve any such disputes prior to Electoral College meeting day.
While this intent is reasonably clear, ECRA’s language could stand to be improved in terms of outlining when this procedure may be invoked: only if a state has either failed to certify the right electors by the deadline set, or if a state has wrongfully certified incorrect electors, in the days immediately preceding the Electoral College meeting. The provision also specifies that the two circuit court judges will be designated by the circuit court’s chief judge. It’s a minor point, but random selection might be preferable here.
Electoral College Meeting Day and Transmitting the Votes
Many ECA reform advocates have urged Congress to move the date on which the Electoral College meets, currently set in mid-December, further back in the calendar to allow more time for litigation to be resolved conclusively. In a nod to this, ECRA makes a small change in the calendar: instead of the “the first Monday after the second Wednesday in December” the electors would meet on “the first Tuesday after the second Wednesday in December.” This is a more modest change than most have recommended, but it does provide an extra day.
For both the earlier certificates of the appointment of electors (by the governor or other official) and the certificates of the electoral votes cast (which are made by the electors themselves under the Twelfth Amendment), ECRA would allow for the papers to be sent to Washington, DC by “the most expeditious method available.” This would address concerns that have arisen over the use of the postal service and possible delays there. Instead, states would be free to use a courier, which is probably the best practice for something so important.
Joint Session of Congress
The most notorious part of the 1887 ECA is 3 USC 15, which spells out the procedures for the joint session of Congress on January 6 where the electoral votes are formally counted. The existing text is a jumbled mess, with run-on sentences running into the hundreds of words and several apparent contradictions. ECRA would fix this, first of all, simply by inserting some much needed punctuation and paragraph breaks.
More substantively, ECRA would insert a provision explicitly stating that Mike Pence was correct: the vice president has no unilateral authority to alter the proceedings, the office’s job is purely ceremonial and ministerial, and in particular, the vice president can not make any independent decision about which votes to count.
ECRA would also raise the threshold needed to make objections. The 1887 ECA allows any one Representative together with any one Senator to force the houses to adjourn to their respective chambers to debate and vote on objections to a state’s votes. This happened twice on January 6, 2021, as to both Arizona and Pennsylvania, on the basis of spurious conspiracy theories promoted by President Trump.
Instead, ECRA would require one-fifth of the members of both houses to cosign any objection, which works out to 87 members of the House and 20 senators. For comparison, only eight senators supported one or both challenges in the 2020 election.
One thing ECRA does not do is clearly limit the valid grounds for objections. Instead, with a slight stylistic restructuring, it retains the language from the 1887 ECA allowing objections on the basis that electors were not “lawfully certified” or that their votes were not “regularly given.” This is unfortunate and should probably be the main focus of any possible amendments.
The problem with the “lawfully certified” and “regularly given” language is that it provides no clear basis for rejecting objections as out of order. Instead, ECA reform should clearly enumerate the constitutionally valid reasons Congress might reject a vote: that an elector was ineligible, that they did not cast their votes on the day and in the form required, that they voted for an ineligible presidential candidate, and a few other discreet requirements each based on a specific provision of the Constitution.
This is critical to make the “conclusive” determination of the states and the courts stick, because it is contradictory to still permit objections to something already declared “conclusive.” Instead, the law should respect the distinction that the states and the courts have the final say on who a state has appointed as its electors (which is based on the the outcome of the state’s popular election), but Congress retains the proper function to rule on how and for whom they voted under the specific constitutional restrictions governing those matters. This is also important as a political matter: members of Congress should be able to point to the law to explain they are not allowed to make certain kinds of objections, particularly as to relitigating the conduct of the underlying election in each state.
Lastly, ECRA aims to clarify how to calculate the needed majority of the “electors appointed.” If this threshold is not reached, the contingent election procedure under the Twelfth Amendment is triggered. There are some nuances here which need to be addressed, particularly as it regards candidate ineligibility to ensure compliance with the Twentieth Amendment. But in general, the principle is correct that if Congress determines an elector was not validly appointed (such as if they hold a federal office, which is not allowed), then that number is deducted from the number used to calculate a winning absolute majority.
One question left unresolved in the ECRA draft (and which Congress has never clearly tackled) is how to handle parliamentary procedure and rulings during the bicameral joint session. I outlined one possibility here, but this is especially important if the vice president as the presiding officer is being denied the authority to make his or her own rulings. There must be some mechanism for enforcing the rules and objecting to violations during the joint session. Ideally, this would involve some way to empower the official parliamentarians for the House and Senate, who are generally respected and trusted to do things by the book.
Severability
ECRA would also add a severability clause, a common practice in the modern era but which is missing from the current ECA. This would cut off claims that the entire law is invalid because some part of it is determined to be flawed, even if a court strikes down that part. The rest of the law would still stand, providing an additional element of stability and certainty. Severability is a worthwhile addition since so many of the moving parts in both the current ECA and any reformed version are in uncertain and untested areas of constitutional law.
Conclusion
In light of the current law, the situation we faced in the 2020 election, and the threats looming for the 2024 election and beyond, the Collins-Manchin ECRA bill would be a vast improvement. If faced with a choice between the status quo and passing this bill as-is, there’s no question that ECRA would substantially reduce the risks of a catastrophe.
As the legislative process moves forward, there are still some details to iron out and some holes to plug. Luckily, signs are positive that these concerns will be addressed and that none of them are insurmountable political hurdles. The ECRA draft is an excellent starting point for that process, and all of the senators who participated in producing it are to be commended.
This shouldn’t be a partisan issue: nobody benefits from having uncertainty and chaos in deciding who holds the most powerful office on the planet. Members of Congress who take this threat seriously are demonstrating exemplary civic-minded statesmanship, at a time when we could all use more of that.
