Congress moved to strengthen the U.S. electoral process in fall 2022 when the House passed the Presidential Election Reform Act, which would reform the law that governs how states and voters choose the president and vice president every four years.
Written in 1887, the Electoral Count Act (ECA) is considered by many to be so complex and arcane that it leaves room for ambiguity, something that former President Donald Trump and his supporters tried to exploit in their attempts to overturn the 2020 presidential election. According to the ECA, the Electoral College meets in states across the country on the first Monday after the second Wednesday in December to cast their votes following a presidential election.
However, if a state has finalized its election results six days prior to that Monday, then Congress must accept those results, even if the state’s legislature sends in competing results. The ECA also allows for members of Congress to object to results without offering a reason, potentially prolonging the counting process by forcing a debate on those states’ electors. Under the Presidential Election Reform Act, members of Congress would have to provide legitimate concerns to object to results.
The vice president’s role in counting electoral votes would also be explicitly defined as clerical and administrative, which has long been the case. However, Trump pressured then-Vice President Mike Pence to throw out votes that had been cast for the victor, Joe Biden. “Our bill reaffirms what the Constitution and existing law make plain: The vice president has no authority or discretion to reject official state electoral slates,” Rep. Liz Cheney (R-Wyo.), who introduced the bill along with Rep. Zoe Lofgren (D-Calif.), said before the vote. “It also makes clear that if members of Congress have any right to object to electoral slates, those grounds are limited to the explicit constitutional requirements for candidate and electoral eligibility in the 12th Amendment’s explicit requirements for elector balloting.”
The Presidential Election Reform Act passed the House in a near party-line vote of 229-203, with nine Republicans and all Democrats voting in favor. Some House Republicans argued that the legislation was moved to a vote too fast for such an important topic. All nine Republicans who supported the bill are not returning to Congress next year, either because or retirements or because they lost their reelection campaigns.
The Biden administration announced support of the bill, saying it “shares the Congress’ interest in safeguarding the electoral process to preserve the will of the people, as expressed through democratic procedures established by law.” The statement added, “Americans deserve greater clarity in the process by which their votes will result in the election of a president and vice president.”
The Senate is also considering its own ECA reform in response to Trump’s unsuccessful and baseless election denial. The Electoral Count Reform and Presidential Transition Improvement Act is the product of a bipartisan group of senators, led by Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.Va.). While similar to the House bill, the Senate’s legislation would require support from one-fifth of each chamber to object to a state’s electors as opposed to the requirement of one-third of each chamber in the House bill.
It would also provide guidelines on when presidential and vice presidential candidates could receive federal resources to support their transition into office. Collins and Manchin have publicly stated that an advantage of the Senate bill is its bipartisan support given that it has 10 Democrat and 10 Republican co-sponsors, or enough support to pass the Senate.
“We are pleased that bipartisan support continues to grow for these sensible and much-needed reforms to the Electoral Count Act of 1887,” Manchin and Collins said in a joint statement. “Our bill is backed by election law experts and organizations across the ideological spectrum. We will keep working to increase bipartisan support for our legislation that would correct the flaws in this archaic and ambiguous law.”
The bill passed the Senate Rules Committee by a vote of 14-1 in September. Sen. Ted Cruz (R-Texas) was the sole no vote and said he voted against the legislation because it “decreases the ability of Congress to address instances of fraud.” Despite that objection, the bill is continuing to gain support in the Senate. Minority Leader Mitch McConnell (R-Ky.) has announced “strong” support for the legislation, making it likely the bill would pass.
The Senate is likely to vote on the bill after the midterm elections, setting up a debate with the House to create a final version.
For more background, see the January 2017 Congressional Digest issue on “The Electoral College Debate.”
