How updating a 135-year-old law could help save US democracy

One of America’s last-ditch defenses against attempts to subvert presidential elections is a rickety 135-year-old antique.

This ancient structure – an 1887 law called the Electoral Count Act – governs the official counting of Electoral College votes and the naming of the new president-elect. But it’s poorly written and vague in important spots. Then-President Donald Trump tested its strength with his post-vote efforts to overturn Joe Biden’s legitimate victory.

Now key members of Congress from both parties are at work on a serious effort to reinforce and perhaps expand the law. Sen. Joe Manchin, the centrist West Virginia Democrat whose opposition blocked broad voting rights legislation earlier this year, says he backs electoral count reform and that it will “absolutely” attract enough GOP support to pass the Senate.

Mr. Trump’s attempts to exploit Electoral Count Act “ambiguities” were “what caused the insurrection” at the U.S. Capitol on Jan. 6, 2021, Senator Manchin said in a broadcast interview last week.

At least two key hurdles remain, however. One is politics. If Democrats try to use this reform to pass parts of their defunct voting bill, they could lose GOP support needed to overcome a Senate filibuster. Or if Mr. Trump hammers the bill enough, it’s possible he could intimidate key Republicans into backing away.

Another, perhaps deeper, problem is getting the balance in Electoral Count Act reform right. At issue is the inherent tension between federal and state power in the American system. Both Congress and the states play key roles in the post-vote counting and certification of presidential winners. Tightening rules on only one side of this equation may leave holes on the other, or even create new vulnerabilities.

“Solving this problem inherently requires trade-offs,” says Matthew Seligman, a fellow at Yale Law School who has studied the Electoral Count Act for years. “Different people are going to make different judgments about what the most important risks are.”

“Widespread consensus” the law needs clarifying

Congress passed the original Electoral Count Act, or ECA, in response to the disputed 1876 election between Samuel Tilden and Rutherford B. Hayes. This vote, perhaps the most chaotic in U.S. history, was marred by claims and counterclaims of fraud and disputes over multiple slates of electors from key swing states.

It took 10 years to draw up the bill, given the disputes surrounding the issue, and the end result was inevitably loaded with internal contradictions, unsatisfying compromises, and dense language. Its primary section is one 830-word block of text, says Dr. Seligman. One sentence has 23 commas and two semicolons.

Parsing its meaning is difficult. And it left holes the unscrupulous might try to exploit.

“They can’t plan for everything and so there’s no question that 140-odd years later, we’re looking back and saying, well they didn’t account for this or that,” says Derek Muller, a professor of law and election law expert at the University of Iowa College of Law.

Reforming the ECA was not originally a Democratic priority. Instead, President Biden and congressional allies pushed to pass broader voting rights legislation meant to block GOP moves to tighten election rules in many states, among other things. 

That didn’t pass, in part because of opposition from Democratic Sens. Manchin and Kyrsten Sinema of Arizona. 

Now key Democrats have joined with Republican counterparts such as Sen. Lisa Murkowski of Alaska in a bipartisan group to deal with ECA reform – and through that, the larger problem of potential election subversion.

“I think there’s fairly widespread consensus that the Electoral Count Act needs to be clarified,” said GOP Sen. Susan Collins of Maine in a Monitor interview last week.

Jan. 6 is what lies behind that “widespread consensus.” Then-President Trump pushed then-Vice President Mike Pence to overturn the ratification of Mr. Biden’s victory, or at least refuse to certify the Electoral College votes of key swing states, due to baseless charges of fraud. Vice President Pence refused to do so.

Mr. Trump also pressed swing state governors and legislators to refuse to certify their own results, but no key officials did. Trump supporters from seven states submitted fake electoral vote certificates to Congress, to no avail.

Will that line hold next time? Imagine this scenario: the governor of a swing state refuses to certify a presidential victory in their state in 2024, citing unsupported fraud allegations. That governor certifies an alternate slate of electors instead. Then, the U.S. House of Representatives votes along party lines to accept those alternate votes. That’s all that’s needed for them to be counted under the current ECA, according to Dr. Seligman, though courts might possibly try to block the action. He called this scenario “The Swing State Governor’s Gambit” in a recent report.

Imagine further that the election is close enough that one state determines the winner, as it did in 2000.

Reforming the ECA to clearly block this or other dangerous hypothetical scenarios “could be extraordinarily helpful,” says Dr. Seligman.

“I think events of the type that we saw in 2021 are low probability and I hope it remains that way,” he says. “But it’s also something where if it went sideways, then it’s absolutely catastrophic.”

“You can’t plan for every contingency”

The first steps toward reforming the creaky ECA are straightforward and appear to be supported by many of the lawmakers working on the effort. They are designed to directly address much of the drama that swirled around the congressional certification of President Biden’s victory on Jan. 6.

For one thing, the role of the vice president in opening and “counting” votes needs to be clearly defined. Most experts believe the ECA, court interpretations, and a century of precedent already block a vice president from unilaterally overturning results or rejecting electoral counts from individual states. But the language is archaic and vague. It should be rewritten to sharpen the point that the vice president is, in essence, simply a master of ceremonies for certification.

If that had been done prior to this year it could have stopped the conservative lawyer John Eastman, Mr. Trump, and others from arguing that Mr. Pence had the power to block or delay the process.

“There would have been no question that Vice President Pence did not have any authority to alter the results of the election or halt the receipt of the counts from [the] states,” says Senator Collins.

Raising the threshold for congressional objection to a state’s Electoral College votes is another obvious fix. Currently, if one senator and one representative question a state’s slate, lawmakers are forced to debate the objection for hours. That’s a recipe for mischief and delay, say experts.

ECA reform could raise the bar for objections to a one-quarter or one-third vote of each chamber. It could set the requirement for sustaining an objection to a supermajority.

But much beyond this, things get complicated. The obvious changes deal with Congress – the ECA is basically a law that governs congressional procedures, after all. But what about the states? Each sets rules for its own certification of Electoral College votes. If Congress’ hands become more tied, will that make it easier for states to manipulate the process?

Mr. Trump’s strategy to overturn the election involved direct pressure on the states, with his phone calls to governors and other state officials. The phony elector certificates sent to Congress were not official in any way – they were basically just roundups of Trump supporters.

In another complicated scenario, what if, following a disputed election, a state has two different slates of electors claiming legitimacy – one approved by the legislature, and the other by a governor of a different party? Or what if a legislature and governor combine to simply overturn a state result neither likes?

Sen. Angus King, an independent representing Maine, has proposed that it might help to clarify that federal courts can get involved and settle such disputes before the deadline at which state certifications must be final.

Other experts have urged Congress to tweak legal language that allows state legislatures to choose electors if their state “failed” to make a choice on Election Day – making clear that something like a natural disaster that physically prevents the election would qualify, but not a dispute about fraud allegations.

Congress also should be wary of doing too much, or giving states incentives to change their own laws in ways that would allow them to get around a reformed Electoral Count Act, says Professor Muller.

America’s election system was tested in 2020, but it survived, he says. No states overturned their elected delegations. No challenges to certification in Congress succeeded.

“There are worries and concerns we might have, but you can’t plan for every contingency,” he says.

Staff writer Christa Case Bryant contributed to this report.