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How to Fix the Electoral Count Act

Congress must address shortcomings in the law that were exploited by insurrectionists trying to overturn the will of the voters on January 6.

Last Updated: July 26, 2022
Published: June 29, 2022

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. On July 20, 2022, a bipar­tisan group of senat­ors released legis­la­tion that addresses many of these issues.

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 a bipar­tisan group of 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.