Menu

Electoral Count Act

Overview

The Electoral Count Act (ECA) governs the process of casting and counting Electoral College votes for president and vice president. The statute sets the timeline for states to appoint presidential electors in November and for electors to cast their votes in December, and describes the process that Congress should follow when it counts the states’ electoral votes in January. As the nation learned in January 2021, the statute is badly in need of an update. It includes antiquated and ambiguous language, and fails to offer clear guidance on key aspects of the process of counting electoral votes and resolving related disputes — weaknesses that render the statute open to misunderstanding or exploitation, and risk the peaceful transitions of power that have been a hallmark of our democracy.

On July 20, 2022, a bipartisan group of 16 Senators introduced the Electoral Count Reform Act (ECRA). The legislation proposes critically important reforms to the ECA. It would clarify the vice president’s limited role in the counting of electoral votes and protect the will of the voters by better ensuring that lawful state-level determinations of election results are respected by Congress (including by raising the threshold for members of Congress to make objections), and by establishing guardrails against state actors who try to disregard election results. In particular, the legislation would require states to appoint electors on Election Day except in narrow and extraordinary circumstances, such as a major natural disaster, and require Congress to count electoral votes that the courts have determined comply with state and federal law. 

ECRA reflects a growing cross-partisan consensus on the urgent need to update the ECA and the key elements of reform. These reforms would not advantage either party and would better secure the peaceful transfer of power in future elections. Congress should pass the strongest possible reform of the Electoral Count Act this year—before the glare of the 2024 election.

Read more: Here’s What Electoral Count Act Reform Should Look Like

For more information, please contact Genevieve Nadeau, [email protected]

About the ECA

On this page:

  • Background
  • Flaws in the Statute & Proposed Updates

1. Clarify that states may only appoint electors after Election Day in a narrow set of extraordinary circumstances

2. Better ensure that state-level determinations of election results made in accordance with state law are respected by Congress

3. Clarify that the vice president (as President of the Senate) plays a limited and largely ceremonial role in the process of counting electoral votes

4. Raise the threshold for Members of Congress to object to a state’s certified election results, and clarify the narrow grounds upon which such objections may be raised or sustained

5. Establish clear rules and processes for resolving disputes in Congress as to counting electoral votes

  • Conclusion

BACKGROUND

Presidential elections in the United States are unlike other elections. The president and vice president are chosen not by the voters directly, but by the Electoral College, which is composed of electors from each state.1 Article II of the Constitution provides that each state “shall appoint” its presidential electors “in such Manner as the Legislature thereof may direct.” All states have chosen to conduct elections, and most appoint all electors to the winner of the statewide popular vote.2

Therefore, when voters go to the polls in November during presidential elections, they actually vote for electors who are pledged to a specific political party’s candidates—the voters do not vote directly for the candidates themselves. The appointed electors (i.e., those who won the election) then gather in December in their respective states to vote for president and vice president, and send certificates of their votes to Congress to be counted in January. 

The Constitution says relatively little about this process. Article II gives Congress the power to “determine the Time of chusing the Electors”—effectively, the power to set Election Day. It also requires that all electors vote on the same day chosen by Congress. The Twelfth Amendment requires that the presidential electors meet and vote on the day chosen by Congress and then transmit lists of their votes to the President of the Senate (a position typically filled by the vice president) to be opened “in the presence of the Senate and House of Representatives.” The Twelfth Amendment then says “the votes shall then be counted.” The candidate having the greatest number of electoral votes for president then becomes president, “if such number be a majority of the whole number of Electors appointed.” (The same process applies to the election of the vice president.) 

The Constitution provides little more detail on the process. That’s where the Electoral Count Act (ECA) comes into play. Congress enacted the ECA in 1887 following the fiercely contested presidential election of 1876, during which the lack of process and rules governing Congress’ counting of electoral votes threatened an existential political and Constitutional crisis.  

Since 1887, the ECA has provided the primary legal framework for casting and counting electoral votes for president and vice president in accordance with the requirements of the Constitution. In addition to setting a timeline for states to appoint electors in November and transmit their votes to Congress in December, the ECA governs the process by which Congress counts electoral votes in January.

(For more detail on the ECA and how it governs presidential elections, see The Electoral Count Act & The Process of Electing a President by the National Task Force on Election Crises.)

FLAWS IN THE STATUTE & PROPOSED UPDATES**

The Electoral Count Act suffers from a number of flaws, stemming largely from vague and antiquated language. Congress can remain faithful to the original purpose of the statute and, importantly, the Constitution,3 while also remedying dangerous weaknesses in the ECA. It can and should do so by addressing five key aspects of the law. 

(1) Clarify that states may only appoint electors after Election Day in a narrow set of extraordinary circumstances. 

The ECA4 provides that if a state has held an election but somehow “failed to make a choice” on Election Day, then the state legislature may choose the manner of appointing electors on a subsequent day.  See 3 U.S.C. § 2. This provision was meant to accommodate run-off elections and extreme weather conditions that sometimes prevented the completion of elections on a single day.5 It was not meant to provide an opening for politicians to reject election results or override the will of the voters. But the language is vague and, importantly, the statute does not define what it means for an election to “fail.” Accordingly, some members of Congress and others have tried to argue that delays in counting votes or disputes about how an election was conducted can form the basis of a “failure” that would justify state legislatures appointing electors themselves after Election Day. That argument is inconsistent with the history and intent behind the ECA, as well as its other provisions.

Nevertheless, a revised ECA should define or replace the concept of “failure” and make clear that only under a narrow set of extreme circumstances, such as a major natural disaster or terrorist attack, may electors be appointed after Election Day. And if this provision is triggered, at a minimum, states should be required to stick with their previous choices as to the manner of appointing electors.

(2) Better ensure that state-level determinations of election results made in accordance with state law are respected by Congress. 

Presidential elections are governed by a combination of the Constitution, federal statutes, and state and local law. Congress determines the timing of the election, including the day on which electors are appointed, and then later counts electoral votes. States determine the manner of appointing electors (e.g., whether by popular election or some other method). And the mechanics of conducting the election are governed primarily by state and local law subject to any constraints or obligations imposed by federal law or the Constitution.

The ECA was crafted with the intent of ensuring that states make timely, final determinations as to the outcome of their presidential elections, including resolving disputes through judicial or other means, so that Congress is positioned to simply count each state’s electoral votes. The ECA’s “safe harbor” provision was intended to accomplish this by providing that when a state finally resolves disputes pursuant to existing law by a certain date, the state’s final determination must be treated as “conclusive” by Congress—meaning Congress cannot second-guess the state’s election results. But the statute does not include any enforcement mechanism and its vague terms allowing Congress to consider whether electoral appointments are “lawfully certified,” and whether electoral votes are “regularly given,” have been misunderstood (at best) by some members of Congress in the past to justify objecting to valid state results.

The ECA therefore can do more to ensure that timely state determinations of election results are respected by Congress. Indeed, Congress’ limited role when it convenes in January is to ensure that the submissions it receives from the states are authentic, in that they reflect the actual outcome of those elections consistent with state and federal law. To that end, Congress should ensure that courts can intervene if, for example, state actors go “rogue” and purport to certify results that do not reflect the outcome of the election. But it is not for Congress to second-guess how the states conducted their elections once they have received valid state submissions. 

A revised ECA should clarify these respective roles of the states, Congress, and the courts. The law should create stronger incentives for states to submit timely, lawful certifications of their election results, and it should constrain attempts by Congress to overturn any state’s validly certified election results.

(3) Clarify that the vice president (as President of the Senate) plays a limited and largely ceremonial role in the process of counting electoral votes. 

The Twelfth Amendment provides that appointed electors must send certificates of their votes for president and vice president to the President of the Senate, and then with respect to his or her role says only that, “[t]he President of the Senate shall, in the presence of Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

The ECA goes further in that it designates the President of the Senate as the presiding officer when Congress meets to count electoral votes on January 6th, and it assigns specific duties: preserving order and decorum; opening and handing electoral vote certificates to the tellers; calling for objections; and announcing the results of votes on objections. The ECA also requires that the President of the Senate announce the result of the overall electoral vote count at the end of the vote-counting process—meaning he or she announces the winning candidates for president and vice president. See 3 U.S.C. §§ 15, 18.

Contrary to what some tried to argue following the 2020 election, neither the Twelfth Amendment nor the ECA contemplate a role for the vice president (as President of the Senate)—or any other presiding officer—that involves resolving disputes or otherwise making substantive decisions about which electoral votes to count.7 The ECA should be updated to make unmistakably clear that the President of the Senate has a limited, largely ceremonial role in the process of counting electoral votes. 

(4) Raise the threshold for Members of Congress to object to a state’s certified election results, and clarify the narrow grounds upon which such objections may be raised or sustained. 

The ECA allows for objections to the counting of electoral votes so long as those objections are made in writing and signed by one senator and one representative. It should not be so easy for members of Congress to disrupt or undermine the counting process by objecting either to a state’s appointment of electors (i.e., its certified election results) or to individual electoral votes. The number of members required to lodge a cognizable objection should be substantially higher than the current threshold. 

In addition, the grounds upon which members of Congress may make or sustain objections to an elector’s appointment or vote should be narrow and clear, consistent with Congress’ role in counting, but not second-guessing, states’ electoral votes. The ECA currently allows for objections that an appointment of electors is not “lawfully certified” or that an electoral vote is not “regularly given.” (Note an important difference between the two categories of objections—the term “regularly given”8 applies to the conduct of electors after they are appointed and not, as members of both parties have suggested, to pre-appointment controversies over the conduct of elections.) But those terms are undefined and the language of the statute is muddled. Instead, an updated ECA should clearly enumerate an exhaustive list of appropriate grounds for objections—separating out objections to appointments of electors and objections to electoral votes.  

With respect to the appointment of electors, the grounds for objection should be limited to the authenticity of a state’s submission—whether it reflects the actual outcome of a state’s election consistent with state and federal law (e.g., members of Congress should be able to object if electors are appointed in defiance of a court order)—and the constitutional eligibility of individual appointed electors. With respect to electoral votes, the grounds for objection should be limited to the validity of a vote under applicable law and constitutional rules, and narrow circumstances in which votes are the result of bribery or other improper influence.

(5) Establish clear rules and processes for resolving disputes in Congress as to counting electoral votes. 

Updating the ECA as described above should make it unlikely that there will be a genuine dispute in Congress as to the counting of electoral votes. But such disputes are not impossible, and there is reason to be concerned, after the 2020 election laid bare the statute’s many weaknesses, that partisan actors will again attempt to exploit those weaknesses—including by somehow submitting competing or “alternate” slates of electors to Congress.

Thus, if all else fails, it should be absolutely clear what happens if there is a dispute within Congress as to the counting of electoral votes. If the Senate and the House of Representatives disagree on whether to count one or more electoral votes, there should be no doubt as to which votes are ultimately counted—and therefore, in the most extreme scenario, which candidate has been elected president. One way to add this certainty is to clarify the language of the statute and rely on members of Congress and others to respect the rules. Another is to assign a tiebreaking role to the courts. Whatever mechanism Congress chooses to resolve disputes, the process (and thus the final resolution) must not be obscured as it is now by convoluted statutory language.

CONCLUSION

The Electoral Count Act governs one of the most important exercises in American democracy—the election of the president and vice president every four years, and the transition period from one presidential administration to the next. The nation has been lucky that the law has served us relatively well (even if not perfectly) since 1887. But the 2020 election and the events of January 6, 2021 laid bare the weakness in the statute, and the nation should be prepared for partisan actors to attempt to exploit those weaknesses in future elections. To guard against a future crisis that might risk a peaceful transition of power, Congress should update and clarify the law. And it should do so in a comprehensive manner that addresses each of the issues described above.

**A version of this overview was published in Lawfare: Thomas Berry & Genevieve Nadeau Here’s What Electoral Count Act Reform Should Look Like (April 4, 2022). 

Notes

  1. The number of electors for each state is determined by adding the number of Senators and Representatives that the state has in Congress. See U.S. Const. art. II, § 1, cl. 2.
  2. Two states – Nebraska and Maine – appoint electors by congressional district (the winner of the popular vote in each district gets that district’s electoral vote), with the remaining two electoral votes (one for each Senator) going to the winner of the statewide vote. 
  3. Thomas Berry, The Legitimate Role of Congress in the Electoral Count, Cato Institute (Feb. 22, 2022).
  4. A version of this provision actually dates back to the Presidential Election Day Act of 1845, and thus preceded the ECA. But it is now included in Title 3 of the U.S. Code alongside the ECA and, given the linkages between the statutes, should be updated along with the ECA.
  5. See, e.g, Michael Morley, Postponing Federal Elections Due to Election Emergencies, Washington and Lee Law Review, Vol. 77, No. 1 (June 4, 2020). 
  6. See, e.g., National Task Force on Election Crises, A State Legislature Cannot Appoint Its Preferred Slate of Electors to Override the Will of the People After the Election
  7. Matthew Seligman, The Vice President’s Non-Existent Unilateral Power to Reject Electoral Votes (October 1, 2021).
  8. Derek Muller, Electoral Votes Regularly Given, 55 Georgia Law Review 1529 (June 28, 2021)

ECA: Frequently Asked Questions

  • What is the Electoral Count Act?
  • Why should Congress update the Electoral Count Act now?
  • What problems does ECA reform need to address?
  • How can the Electoral Count Act prevent state legislatures from overriding the will of the voters?
  • How can ECA reform prevent members of Congress from rejecting lawfully certified state election results?
  • How can ECA reform prevent state officials from refusing to certify presidential election results or certifying results that do not reflect the result of the popular vote?
  • What role should there be for the federal courts in an updated Electoral Count Act?
  • Is the Electoral Count Act constitutional?
  • Who supports reforming the Electoral Count Act?
  • How does the Supreme Court’s consideration of the independent state legislature theory impact ECA reform?

 

What is the Electoral Count Act? 

The Electoral Count Act of 1887 is the primary legal framework for the casting and counting of electoral votes for president and vice president in accordance with the Constitution. Congress enacted the ECA in 1887 following the contested presidential election of 1876, during which the lack of rules regulating Congress’s counting of electoral votes nearly caused a constitutional crisis. The ECA sets the timeline for states to appoint electors in November and transmit their votes to Congress in December. It also governs the process by which Congress counts electoral votes in January, including how it should resolve objections and related disputes. 

Read more about the Electoral Count Act here

Why should Congress update the Electoral Count Act now? 

The last presidential election laid bare the weaknesses in the Electoral Count Act. The statute’s vague and arcane language makes it susceptible to misunderstanding or worse—especially in future elections. By passing legislation well ahead of the 2024 election, Congress can address the weaknesses in the ECA and protect future presidential elections and transitions, without helping or hindering any particular candidate or political party. 

What problems does ECA reform need to address? 

There are five weaknesses in the Electoral Count Act that Congress should address. ECA reform should: 

  • Clarify that states may only appoint electors after Election Day in a narrow set of extraordinary circumstances, such as a major natural disaster; 
  • Better ensure that state-level determinations of election results made in accordance with state law are respected by Congress;
  • Clarify that the vice president (as President of the Senate) plays a limited and ministerial role in the counting of electoral votes; 
  • Raise the threshold for Members of Congress to object to a state’s certified election results, and clarify the narrow grounds upon which such objections may be raised or sustained; and 
  • Establish clear rules and processes for resolving disputes in Congress over the counting of electoral votes. 

The ECA is a complex statute, with provisions that all work together to regulate the process of casting and counting electoral votes. To update the statute so that it is durable for years to come, Congress should address each of these five issues—which you can read more about here

How can the Electoral Count Act prevent state legislatures from overriding the will of the voters? 

The Constitution allows states to decide how they will appoint presidential electors (i.e., through an election or other means), but Congress determines the day on which states must do so. Because all states hold popular elections, the day on which states must appoint their presidential electors is Election Day. The ECA also includes language that allows state legislatures to determine the “manner” of appointing electors after Election Day if the state held an election on that day and “failed to make a choice.” But that phrase is antiquated and undefined, and some state (and federal) actors have wrongly claimed it to mean that allegations of irregularities may be used to justify state legislatures questioning the results of the election and instead appointing electors themselves after the election, even if that means overriding the official results and the will of the voters. The ECA should be updated to make it clear that if a state has chosen to appoint electors through a popular vote, it can only appoint electors after Election Day in extreme circumstances, such as a major natural disaster or a terrorist attack disrupting the election—and, even then, states should be required to stick with their previous choices as to the manner of appointing electors. 

How can ECA reform prevent members of Congress from rejecting lawfully certified state election results? 

Congress’ primary role under the Twelfth Amendment and the ECA is to count electoral votes—not to second-guess how states conducted their elections. But it is relatively easy for members of Congress to object to a state’s certified election results because, under current law, only a single member from each chamber is needed to raise an objection, and the appropriate grounds for objections are obscured by arcane language. Congress should update the ECA—to limit frivolous objections to electoral appointments or electoral votes—by raising the threshold for members of Congress to make objections (e.g., to a fifth, quarter or third of each chamber) and by clarifying the narrow grounds upon which such objections may be raised or sustained. 

In addition, Congress should create stronger incentives for states to determine the results of their elections pursuant to existing state law in a timely fashion, and require Congress to count those results. 

How can ECA reform prevent state officials from refusing to certify presidential election results or certifying results that do not reflect the result of the popular vote?

Although Congress’ primary role in presidential elections is to count electoral votes, it should be able to ensure that the submissions it receives from the states are authentic, in that they reflect the actual outcome of those elections consistent with state and federal law. An updated ECA should include a limited, expedited role for courts to intervene if, for example, state actors go “rogue” and purport to certify results that do not reflect the outcome of the election. And it should allow members of Congress to object if a state purports to appoint electors in defiance of a court order. 

What role should there be for the federal courts in an updated Electoral Count Act? An updated ECA should include a provision for limited, expedited review by federal courts to address extreme situations in which state officials either fail to certify elections or purport to certify results that conflict with the outcome of the popular vote (and thus with state and federal law). The ECA requires an official from each state to send timely, accurate election results to Congress after the state completes its election and resolves any disputes as to the outcome. By creating a limited role for the federal courts to ensure that state officials perform this basic federal obligation in accordance with the law, an updated ECA can also help ensure that Congress keeps to its own limited role of counting electoral votes without second-guessing state election results. 

Is the Electoral Count Act constitutional? 

Yes. Article II and Twelfth Amendment provide only a very basic timeline and framework for presidential elections, including setting out certain basic requirements for the appointment of electors, and providing that electoral votes must be opened by the President of the Senate in the presence of both chambers of Congress and then counted. The ECA does the necessary (and constitutionally sound) work of filling in the rest by explaining how electoral votes should be counted and how to resolve questions or disputes as to whether particular electoral votes are valid. For a more detailed explanation, read The Legitimate Role of Congress in the Electoral Count

Who supports reforming the Electoral Count Act? 

There is broad cross-ideological support for updating the Electoral Count Act. A bipartisan group of nearly 20 Senators has identified ECA reform as a priority and is actively working on it. Outside of Congress, legal experts across the political spectrum have released proposals for how to reform the ECA. In addition, public polling has consistently found that a large majority of Americans share the belief that the Electoral Count Act should be reformed. 

How does the Supreme Court’s consideration of the independent state legislature theory impact ECA reform?

The Supreme Court has agreed to hear Moore v. Harper, which includes arguments on the “independent state legislature” theory (ISL). ISL is a constitutional theory that would, if adopted, remove state-level checks on state legislatures’ regulation of federal elections, including freeing state legislatures from state constitutional constraints. If adopted by the Supreme Court, especially in its maximalist form, ISL could have disruptive and harmful effects on the administration of elections, leading to two different and potentially conflicting sets of rules for federal and state elections simultaneously. However, even if the most extreme version of ISL were to become law, state legislatures would still be required to comply with federal law, including the ECA (whether reformed or in its current form). 

Please contact Genevieve Nadeau (genev[email protected]) for more information.

Senate Electoral Count Reform Act (ECRA)

On July 20, 2022 a bipartisan group of 16 Senators introduced the Electoral Count Reform Act. Analysis and support for the legislation are collected below.

ECRA Explainer

Click here to read Protect Democracy’s ECRA Explainer which details the provisions included in the bipartisan Senate bill and how they would change the current process.

Protect Democracy Briefing

  • Protect Democracy held a briefing with former Kentucky Secretary of State Trey Grayson, Campaign Legal Center Vice President and Legal Director Adav Noti, and Protect Democracy Counsel Genevieve Nadeau. The briefing can be viewed in full here.

 Analysis

Support for the Legislation

  • Washington Post Editorial Board, “The Electoral Count Reform Act must pass — even if it’s not perfect.” The Washington Post, August 2, 2022.
    • The Electoral Count Reform Act is a bipartisan compromise that comes in response to hyperpartisan division. It’s no surprise that the legislation isn’t perfect. What it is, however, is essential.
  • Rick Hasen, “What the Critics Get Incredibly Wrong about the Collins-Manchin Election Bill.” Slate, July 25, 2022.
    • Any meaningful step that lessens the chances of a stolen presidential election in 2024 or beyond is worth pursuing, and the bill would be a significant step forward. 
  • Ramesh Ponnuru, “The Senate’s Election Reform Bill Does Just Enough.” Bloomberg, July 24, 2022.
    • But the bill’s main focus is properly on preventing misconduct at the federal level. (A companion bill responds to threats to federal and state election workers.) The current version of the law lets Congress throw out electors if a state has held a “failed election.” The reform lays out narrow and objective criteria for discarding electors, and again requires following procedures enacted prior to the election
  • Henry Olsen, “Electoral Count Act Reform Won’t Save Our Republic. But it Could Help Preserve it.The Washington Post, July 21, 2022.
    • Electoral Count Act reform won’t save our republic, but it will help to preserve it. Congress should pass the proposal rapidly and with a large, bipartisan majority.
  • Yuval Levin,A Promising New Electoral Count Act Reform Proposal.” National Review, July 21, 2022.
    • This is a very good set of reforms. The bulk of them are directed to avoiding a repeat of the sorts of problems we saw in 2020 — a situation in which the states all did their jobs but members of Congress, at the behest of the defeated incumbent president, moved to sow doubt about the outcome by capitalizing on the vagueness and looseness of the ECA. 
  • Wall Street Journal Editorial Board, “Preventing the Next Jan. 6 Riot.” The Wall Street Journal, July 21, 2022.
    • This week 16 Senators, led by Republican Susan Collins and Democrat Joe Manchin, unveiled legislation to overhaul the ECA and stop future electoral mischief. The bill isn’t perfect, but it’s worth passing.
  • Washington Post Editorial Board, “A Bill to Prevent Trump’s Attempted Coup is Finally Ready – and Must Pass.” The Washington Post, July 20, 2022.
    • Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) have been laboring for months to overhaul the country’s arcane system of counting and certifying votes for president and vice president. Finally, they’ve released a product — and it’s a fine one. Their bill not only guards against the gambits the lame duck White House attempted in 2020, but it also limits the potential for other nefariousness by a future candidate.
  • Boston Globe Editorial Board, “Safeguarding the Electoral Count Before it’s Too Late.” The Boston Globe, July 26, 2022.
    • But this restructuring of the Electoral Count law can close some loopholes and eliminate those ambiguities ripe for exploitation by the next candidate-turned-tyrant bent on overturning the will of the people. It is an essential piece of legislation that should be in place long before the next presidential election rolls around.
  • National Review Editors, “Time to Pass Electoral Count Act Reform.” National Review, July 26, 2022.
    • Now, a proposed bipartisan bill, the Electoral Count Reform Act, is on the table… The ECRA is not perfect, and it could use some improvements to its language, but it deserves Republican support.
  • Jennifer Rubin, Democrats Should Take Yes for an Answer on Electoral Count Act Reform.” The Washington Post, July 20, 2022.
    • The sole test for the ECA reform bill should therefore be whether it makes the current system less vulnerable to abuse, fraud and coup plots. By limiting the vice president’s role in counting electoral votes, raising the bar for members of Congress to challenge electors and preventing mischief from state legislators, it meets that test. 
  • Greg Sargent and Paul Waldman, “The New Proposal to Prevent a Future Coup is Surprisingly Good.” The Washington Post, July 20, 2022.
    • As we reported this week, a bipartisan group of senators has been negotiating over complicated reforms designed to thwart a rerun of Donald Trump’s coup attempt. The reforms revise the Electoral Count Act of 1887, which governs how Congress counts presidential electors. Now, the bill’s text has been released. It’s very similar to what we reported on previously, and the proposal turns out to be a surprisingly good one.
  • Walter Shapiro, “Don’t Let the Electoral Count Act go Down for the Count.” Roll Call, July 26, 2022.
    • For American democracy, though, nothing matters more than passing a long-overdue rewrite of an obscure piece of legislation called the Electoral Count Act of 1887.
  • Professors Ned Foley, Michael McConnell, Derek Muller, Rick Pildes, and Brad Smith, “Why Congress should Swiftly Enact the Senate’s Bipartisan ECA Reform Bill.” Election Law Blog, July 20, 2022.
    • The bipartisan group of Senators, led by Senators Collins and Manchin, have released a draft bill for a revised Electoral Count Act (ECA). We want to state here why we, a bipartisan group of law professors, support it and urge Congress to enact it this summer.

 Organization Statements

  • Business Roundtable
    • Business Roundtable applauds the bipartisan group of Senators who have worked together to craft legislation to reform the Electoral Count Act of 1887. The Electoral Count Reform and Presidential Transition Improvement Act makes important updates to the law to eliminate any ambiguities around Congress’s role or procedures.
  • Campaign Legal Center
    • The next presidential election could be one of the most contentious ever. Now is the time for the Senate to move this crucial legislation. Congress must act as soon as possible to pass the Electoral Count Reform and Presidential Transition Improvement Act to protect the will of the people, because elections should be decided by voters, not partisan politicians.
  • Center for American Progress
    • The basic idea that the person with the most votes should win an election has been replaced by a conspiracy-minded refusal to accept defeat. The legislation introduced today would address one critical symptom of this problem: It would help prevent efforts to undermine presidential elections like the one that culminated in the January 6 attack. 
  • Civil Rights Groups
    • “The undersigned organizations welcome the introduction of legislation to reform the Electoral Count Act of 1887 (“ECA”)… The provisions in the bill are intended to address any ambiguity in the ECA. We look forward to Congress carefully reviewing and strengthening the current proposal to ensure that final legislation eliminates all paths to undermining the votes and voices of our increasingly diverse electorate.
  • Common Cause
    • Americans deserve to know their votes will be counted and their voices heard in our elections. Reform of the antiquated Electoral Count Act is an important step to safeguard the results of free and fair elections. 
  • Democracy 21
    • Democracy 21 is pleased that the Senate group has developed and unveiled this bipartisan proposal which sets the stage for the Senate to move forward in addressing the problems with the 1845 Act and the ECA – problems that were dramatized by former President Donald Trump’s presidential coup attempt.
  • National Council on Election Integrity
    • We commend the senators involved for their leadership on this crucial issue. Updating the ECA now is necessary to protect future elections, and we look forward to supporting the ongoing discussions in both chambers to finalize the details to ensure Congress gets this done.

 Senator Statements

  • Senator Shelley Moore Capito Statement
    • The legislation comes after months of bipartisan negotiations and will ensure the electoral votes tallied by Congress accurately reflect each state’s vote for president and will promote a peaceful transition of power between the outgoing and incoming president.
  • Senator Ben Cardin Statement
    • Free and fair elections are fundamental to who we are as a nation. For this reason, I strongly support the bipartisan working group’s proposal to reform and modernize the Electoral Count Act (ECA) of 1887. 
  • Senator Ben Cardin Floor Statement
    • Our legislation aims to ensure that Congress can accurately and correctly tally the electoral votes cast by the States, which should be consistent with each State’s popular vote for President and Vice President of the United States. Our legislation clarifies some of the ambiguities in terms of the appropriate State and Federal roles in selecting the next President and Vice President of the United States as set forth in the U.S. Constitution.
  • Senator Susan Collins Statement 7/20
  • Senator Susan Collins Floor Statement
    • The legislation that we are introducing – the Electoral Count Reform and Presidential Transition Improvement Act – will help ensure that electoral votes totaled by Congress accurately reflect each state’s popular vote for President and Vice President.
  • Senator Susan Collins Statement 7/22
    • On Wednesday, U.S. Senators Susan Collins (R-ME) and Joe Manchin (D-WV) led a bipartisan group of 16 Senators in introducing legislation to reform and modernize the outdated Electoral Count Act of 1887. Since then, endorsements from legal scholars, campaign experts, and organizations from across the political spectrum have rolled in to express support for this bipartisan effort.
  • Senator Chris Coons Statement
    • Today’s legislation is a critical first step towards repairing damage to our democratic process and public confidence in our free and fair elections, and I am optimistic it will move forward in the days to come.
  • Senator Dick Durbin Speech
    • The Senate will soon consider a bipartisan Electoral Count Reform Act to make it plain that a Presidential election cannot be overturned by wrongful partisan interference by a Vice President or any State or congressional officials. I support this effort… I hope that this bipartisan effort can get 60 votes in the Senate.
  • Senator Joe Manchin Statement
  • Senator Lisa Murkowski Statement
    • Our legislation gives more clarity to states and Congress on the electoral count process; clarifies that when the successful candidate for President and Vice President is not clear, that all candidates have equal access to information important to an orderly transition of power; provides improvements to cybersecurity testing for voting systems; and enhances penalties for individuals who threaten election workers—just to name a few. There is nothing more fundamental than the right to vote, so we are taking necessary steps to bolster the public’s trust in our elections.
  • Senator Chris Murphy Speech
    • I’m proud of the effort between Republicans and Democrats to put aside our differences on other issues and to be able to put before this body a proposal that will assure that the votes that are cast all across this country for president in 2024 result in the winner of that election sitting in the Oval Office.
  • Senator Chris Murphy Statement
  • Senator Mitt Romney Statement
  • Senator Ben Sasse Statement
    • This is a good bill – specifically the provisions clarifying the Vice President’s limited role and increasing the threshold for objections. This bill cleans up some ambiguity in the ECA that was dishonestly exploited on January 6th. 
  • Senator Jeanne Shaheen Statement
  • Senator Thom Tillis Statement
  • Senator Mark Warner Statement
  • Senator Mark Warner Tweet Thread
    • One of the most critical provisions of our Electoral Count Act reform bill requires 1/5 of Senators AND House members to challenge a state’s electoral count – so just a few fringe representatives can no longer sow distrust in our democratic institutions.

General Support for ECA Reform

Find out what people across the political spectrum are saying about the need to update the Electoral Count Act:

Genevieve Nadeau and Thomas Berry, “Here’s What Electoral Count Act Reform Should Look Like.” Lawfare, March 4, 2022.

As momentum in favor of updating the ECA grows, there is some concern that Congress may shy away from comprehensive reform and instead tackle only the most obvious flaws in the law. That would be a missed opportunity. Congress can and should remain faithful to the original purpose of the statute (and the Constitution) while also remedying dangerous weaknesses in the ECA that invite uncertainty as to the various roles that state and federal actors, as well as the different branches of government, play in the process. It can do so by addressing five key aspects of the law on which there seems to be a fair amount of consensus across the ideological spectrum. 

Bob Bauer and Jack Goldsmith, “Principles for Electoral Count Act Reform.” Lawfare, March 4, 2022.

For the last several months, at the invitation of the leadership of the American Law Institute, a group whose 10 members span a range of legal and political views came together to consider possible Electoral Count Act (ECA) reforms. …Today our group is releasing the unanimous conclusion of its deliberations, which can be found here. The group agrees that Congress should reform the ECA in time for the 2024 election, and offers both core reform principles and specific proposals for statutory revision in an effort to contribute to a constitutionally sound bipartisan consensus in Congress.

Judge Michael Luttig, The Conservative Case for Avoiding a Repeat of Jan. 6th.” New York Times, February 14, 2022. 

“It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. … The needed changes, which would meet the political objectives of both parties, should command broad bipartisan support in any responsible Congress. For Republicans in particular, these changes are sleeves off their vests. Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.”

Editorial Board, “Jan. 6 Was a Warning. Will Lawmakers Do Anything to Protect the 2024 Election?” New York Times, February 5, 2022.

“If [ECA reform] essential components do pass, Democrats can take comfort in knowing that politicians and lawmakers will have a much harder time undermining a valid vote. Republicans, who like to talk about the importance of states’ rights in our federalist system, can be reassured that Congress will stay in its lane and leave the power to appoint electors with the states, where it belongs.”

Zach Wamp and Tim Roemer, “Elections should be decided by voters, not partisan politicians.” Washington Examiner, January 25, 2022.

“[Reforming the ECA] is supported by a majority of Republican and Democratic voters, according to a number of recent polls. Many have expressed their concern that one party in Congress could try to overturn the results of an upcoming presidential election to put their own candidate in power. Our leaders should listen to the American people and fix this outdated law so that the next presidential election — and a smooth and peaceful transition of power — is not left to chance.”

Larry Diamond, Democrats, Want to Defend Democracy? Embrace What Is Possible.” New York Times, January 25, 2022.

[A] new bill would fix some of the most dangerous vulnerabilities in the 1887 Electoral Count Act — some of which we saw in the 2020 election — that could enable a future Congress (or a rogue vice president) to reverse the vote of the Electoral College in certain states or to plunge the process of counting electoral votes into such chaos that there would be no way of determining a legitimate winner. Such a deadlock could precipitate a far larger and more violent assault on the democratic order than what we saw on Jan. 6. Reducing the risk of such a calamity is a democratic imperative.

Andy Craig, “What Changes Should be Made to the Electoral Count Act?” Cato Institute, January 12, 2022.

“Fixing the Electoral Count Act is urgently needed to avoid future constitutional crises. It’s likely that any version of reform proposed in Congress would be an improvement over the notoriously confusing status quo. A redrawn ECA should be grounded in the constitutional separation of powers, allowing Congress to act when it potentially needs to but otherwise closing the door to partisan malfeasance.”

Rick Hasen, “No One Is Coming to Save Us From the ‘Dagger at the Throat of America.’ New York Times, January 7, 2022.

“While Mr. Trump unsuccessfully tried to get his Republican vice president, Mike Pence, to throw the election to him or at least into chaos, Republicans know it will be Democratic vice president Kamala Harris, not Mr. Pence, who will be presiding over the Congress’s certification of Electoral College votes in 2025. Perhaps there is room for bipartisan agreement to ensure both that vice presidents don’t go rogue and that state legislatures cannot simply submit alternative slates of electors if they are unsatisfied with the election results.”

Editorial Board, To Stabilize Democracy, Congress Must Reform the Way it Counts Electoral Votes.” Washington Post, January 5, 2022.

“Congress should reform the 1887 law, known as the Electoral Count Act (ECA), before it’s used to justify more subversion of democracy.”

Yuval Levin, “Democrats, Voting Rights Are Not The Problem.” American Enterprise Institute and New York Times, January 5, 2022.

[A]ll of us saw just a year ago that Congress’s role in certifying presidential elections could be clarified and rid of opportunities for confusion and mischief. … [Federal legislation] could modernize and simplify the Electoral Count Act of 1887, which still governs Congress’s and the vice president’s roles in certifying presidential elections.

Professors Edward Foley, Bradley Smith, Michael McConnell, and Richard Pildes, “How Congress Can Fix the Electoral Count Act.” Washington Post, January 4, 2022.

[T]o avoid a repeat of Jan. 6, or worse, Congress must rewrite the Electoral Count Act, the outmoded 1887 law that governs the certification of the presidential vote. … Congress committed in the original Electoral Count Act not to second-guess a state’s vote when that state sends only a single slate of electors. In recent decades, that commitment has become dangerously frayed. Congress needs to update and clarify the act to produce a statute that does not invite abuse by its own members.”

Editorial BoardOverturning the Next Election.” Wall Street Journal, January 4, 2022.

“The Electoral Count Act was an attempt to avoid the mess that followed the contested 1876 Hayes-Tilden election, but its ambiguous language has made it open to abuse. In these polarized times, both parties could use the law in the future as an excuse to attempt to overturn an election in the House and Senate. Congress shouldn’t have even the appearance of this power. … Rewriting or repealing the Electoral Count Act leaves neither party with a partisan advantage. Now is also a good time to pass such legislation, since no one knows who will control each chamber of Congress in 2025.”

David French, Stop Screwing Around and Reform the Electoral Count Act.” Dispatch, January 4, 2022.

If—after everything we’re learning about January 6 and Trump’s effort to steal the election—we don’t reform the Electoral Count Act, we’re idiots. There’s just no other way to say it. If that sounds a bit wonky and weird, the reasoning is easy enough to explain. Congress passed the Electoral Count Act in 1887 as a decade-overdue response to the disputed election of 1876. It’s supposed to provide a mechanism for responding to and resolving disputes in counting and certifying the vote of the Electoral College, and while the overall intent is relatively clear, the language itself is a ridiculous mess.

Editorial Board, “Reform the Electoral Count Act.” Washington Examiner, January 3, 2022.

“There were no legitimate grounds to reject the results certified by each of the states. But the vital need is not to castigate but to urge future measures. The Trump team’s identification of all the procedural confusions in the ECA shows that the law needs reform. The attempted decertification nearly brought the electoral system to a dangerous impasse. The system cannot afford another such instance of impasse and instability.”

Editors, “Republicans Should Help Reform the Electoral Count Act.” National Review, December 18, 2021.

“The 2020 presidential election concluded with a political and constitutional crisis unmatched in the United States since the 1876 election. Congress should respond, as it did after 1876, by shoring up and clarifying the process for resolving presidential elections with disputed outcomes. That will require the votes of Senate Republicans, who should support reforming the Electoral Count Act as a matter of both good policy and political self-interest.”

Andy Craig, “Republicans Should Support Electoral Count Act Reform.” Cato Institute, December 15, 2021.

“Republicans should see there are both good, principled reasons to support ECA reform as well as strong reasons of partisan self-interest. The status quo serves neither party. The necessity of obtaining Republican votes for ECA reform will also let them nix any changes they find unacceptable, but only if they’re at the table.”

Kevin Kosar, “Congress can prevent another Jan. 6 by updating a key elections law.” The Hill, December 14, 2021.

“More should be done to ensure Congress does not monkey with states’ electoral determinations. One way to do this would be to update the Electoral Count Act (ECA), the 1887 act that provides vague guidance on how to conclude a presidential election.”

Ben GinsbergRepublicans in Congress Should Update the Electoral Count Act Before It’s Too Late.” National Review, December 5, 2021.

“Designed to govern Congress’s tabulation of Electoral College votes — including disputes between the chambers — the aged law is a swamp of ambiguity. Its byzantine, vague, and muddled provisions do not provide sufficient answers to crucial questions that could arise in a genuinely close election. Despite the fact that the former president’s attempts to exploit those shortcomings failed in 2020, he and all Republicans should be haunted by the blueprint that he has created for his opponents if he were to run for office again in 2024.”

Ramesh Ponnuru, U.S. Election Coups? Really? Let’s All Take a Deep Breath.” National Review and Bloomberg, October 3, 2021.

“To the extent that Trump’s post-election campaign compels any policy response at all, it is a reform of the Electoral Count Act of 1887, which contains confusions and imperfections that an unscrupulous and nimble political leader could exploit.”

Quin Hillyer, Two new reports of Trump cheating attempts show why the ‘Electoral Count Act’ needs an overhaul.” Washington Examiner, September 23, 2021.

“Congress should revisit the ECA. Because there is no way to know which party in the future might benefit, or suffer, from the ECA’s confusion, it is in both parties’ interest to pare down its processes and to describe them in plainer English. If Pence had acted upon the advice in the Eastman memo, the whole U.S. body politic might have come apart at the seams, creating weeks of Jan. 6-like riots instead of just one day. A single day was bad enough. The best way to avoid another like it is to write a law whose meaning we can count on.”

Trevor Potter & Norm OrnsteinCongress Has The Power To Prevent A Repeat Of January 6.” Talking Points Memo, August 16, 2021.

“…We can’t lose sight of what made Jan. 6 a pivotal date. It is the date set by an 1887 law for the counting of electoral college votes — and it was the controversy engineered by Donald Trump over those votes that precipitated the violence. That law — the Electoral Count Act (ECA) of 1887 — is outdated. Congress can take an important step toward restoring Americans’ trust in the integrity of our democratic process by updating an obsolete law most Americans have never heard of, which is full of archaic and unclear language, to provide a clear and fair framework for resolving disputes in the Electoral College.” 

Meredith McGehee & Elise WirkusCongress Must Update the Electoral Count Act.” The Hill, July 27, 2021.

“The current ECA is arcane and out of date. The 117th Congress needs to pass a nonpartisan update that addresses the multiple weaknesses identified in the law over the past few decades to ensure that both parties understand their role in counting the slates of electors in the future. An update will help avoid uncertainty and a more destructive constitutional crisis in 2025 and beyond. Perhaps even more importantly, passing a modernized ECA will prove that — even at a time of intense partisanship — both parties can meet at the water’s edge when it comes to strengthening our most foundational constitutional processes.”

Walter Olsen, Congress Should Clarify the Electoral Count Act of 1887.” Cato Institute, June 29, 2021.

One high priority should be to take a look at the Electoral Count Act of 1887. … While well-intentioned, the 1887 act is very far from perfect. It leaves too wide an opening for those who would argue that Congress, the Vice President or both have leeway to exercise a selective power, rather than being bound in a ‘ministerial’ way to count arriving electoral votes. It includes some bits of vague and puzzling language, and it fails to take advantage of opportunities to clarify that, e.g., further objections are out of order if a state has certified a slate of electors without challenge under its own law.”

Kevin Kosar, Could Kamala Harris Steal the 2024 Election for Biden – or Herself?American Spectator, June 14, 2021.

“The Electoral Count Act is a half-buried piece of ordinance waiting to go off. The GOP politicians played with fire on January 6, and they would be very wise to get behind legislation to ensure that come the next presidential election they and our republic are not on the losing end.”

Dan McLaughlin, Fixing the Electoral Count Act is a good idea.” National Review, June 11, 2021.

“Even if neither party provokes a crisis in 2024, we do not know what will come down the road. It is better to fix your umbrella while the sun is still shining. Congress spent a decade working on avoiding a repetition of the crisis of 1876, resulting in the ECA’s passage in 1887. It has served us well for over a century, but its convoluted language could use some updating in order to eliminate some of the arguments that were made in 2020.”

Mona Charen, “Don’t Cry for H.R.1 – Amend the Electoral Count Act Instead.” The Bulwark, June 10, 2021.

There is something Democrats can do at the federal level to respond to the threat: They can amend the Electoral Count Act of 1887. … This law, blissfully ignored for most of its history with the exception of a couple of law review articles, was passed following the contentious Hayes/Tilden election in 1876—a contest that was so close it threatened to tear the country apart just 11 years after Appomattox. The law is, by many accounts, a ‘morass of ambiguity.’ That’s too kind.

Public Polling

Polling shows bipartisan support for critical updates to the Electoral Count Act:

  • January 26, 2022—According to polling by CBS News/YouGov, “a large bipartisan majority of Americans feel the rule should, indeed, be that Congress must accept certified presidential electoral votes from the states.
  • January 12, 2022—A Politico/Morning Consult poll showed that “55% of voters say the Electoral Count Act should be changed to clarify that the vice president cannot reject state-certified results when Congress meets to count the votes.”

 

The CBS News/YouGov and Politico/Morning Consult poll results are consistent with earlier polling demonstrating bipartisan support for updating the ECA.  Read more in the Washington Examiner (Oct. 26, 2021).

  • Voters support updating the ECA by a 44-point margin (62% support/only 18% oppose) after receiving a brief description of the law. Majorities of voters across partisan, demographic, and geographic lines support updating the law.
    • Nearly two-thirds (63%) of voters say they would be more likely to support updating the ECA if the updated law was written and proposed by Democratic and Republican members of Congress. 
  • Voters strongly support limiting Congress’s ability to overrule state election results. By a 33-point margin, voters feel there should be only a narrow set of circumstances that allow Congress to reject certified state election results. Voters believe it should be difficult for Congress to “throw out” results (+29 difficult).
    • Most Americans are concerned about a party trying to overrule the results of an upcoming presidential election. A majority—58% of those polled—think it’s likely a party will try to overturn the presidential election results in an upcoming election. 

Proposals to Update the ECA

The following is a comparison of proposals to update the Electoral Count Act. For a PDF of this document, click the download icon in the flipbook below.

For the best reading experience, hover over the flipbook and use the full screen control at the bottom right.

 

Help Protect Democracy

History has shown that the best way to protect democracy is by standing united in its defense. Donate to help us to scale up our efforts to educate, advocate, organize, and litigate on behalf of the values we all hold dear.

Donate

Be an informed American.

An engaged and informed public is at the heart of American democracy. Sign up to receive updates that will keep us all informed about the threats we face and how we can fight to protect our democracy together.