By Adam DuBard, Political Analyst

After the U.S. Senate’s failure to pass the Freedom to Vote Act, pro-democracy activists have turned their attention to reforming a law called the Electoral Count Act (ECA). There have been numerous reports in recent days that a bipartisan group of senators have been working to fix the law. 

To be clear: Reforming the ECA is not a substitute for the many pro-voting provisions that were in the Freedom to Vote Act, but it is an important step we can take at the federal level to protect American democracy. Crucially, if done correctly, this effort would help prevent future attempts at overturning elections.

What is the Electoral Count Act?

The Electoral Count Act of 1887 was passed in response to the disputed presidential election of 1877, when several states sent conflicting slates of electors to Congress in the midst of Reconstruction. Initially, this law was intended to streamline the process of counting electoral votes to avoid controversy over the final presidential vote. However, over the last 130 years the ECA has been routinely criticized for ambiguous language and poor drafting – issues that President Trump and his anti-democratic allies attempted to cynically exploit in 2020. 

 

Why does the ECA need to be fixed? Unclear Wording 

One of the biggest issues with the ECA is that much of the language is unclear about what role the Vice President plays in counting the electoral votes. Since the 2020 election, former President Trump has repeatedly claimed that the Vice President has the authority to change the election outcome. In a statement on January 31, Trump responded to the bipartisan ECA reform efforts, saying, “Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn't exercise that power, he could have overturned the Election!” 

While former President Trump’s statement is false, the unclear wording in the ECA provides an opportunity to subvert presidential elections. The actual text reads that in regards to states’ electoral slates, “all such returns and papers shall be opened by him,” referring to the Vice President. Further, the ECA says that "in the presence of the two houses when met as aforesaid, and read by the tellers, and all such returns and papers shall thereupon be submitted to the judgment and decision.”

In short, the contents of the ECA are incredibly vague, with ample room for multiple interpretations of the act’s original intent despite fairly consistent application of the law throughout its history. As the country witnessed following the 2020 election, malicious actors attempted to subvert the ECA’s original intent, exploiting the inherent ambiguity within the act’s text. As Rebecca Green, co-director of the election law program at William and Mary Law School, remarked to ABC News, “Does this run-on sentence mean that Mike Pence shall open only the ballots that he wants? Or does he have to open if there's more than one slate from a state -- how does he know which ones to open?” The need to clarify that the Vice President’s role is merely ceremonial is crucial to ensuring future politicians do not seek to once again overturn a presidential election. 

 

Further concerns and calls for action

Another concern with the ECA in its current form is the relatively low barrier required for members of Congress to object to a state’s electoral votes. Currently, objecting to a state’s electoral vote results merely requires one senator and one representative. Last January, eight senators and 139 representatives objected to the electoral votes in Arizona and Pennsylvania, which required hours of additional debate during the counting procedure. 

While the proposed ECA reforms are still in the drafting process, Senators Angus King (I-ME), Klobuchar (D-MN), Durbin (D-IL) released a one-pager highlighting some of the potential changes they hope to enact. Among them are raising the threshold for members of Congress to “debate and vote on an objection from one member of each Chamber to one-third of the members of each Chamber.” Although this proposal is different from the bipartisan group, they hope to work together to pass meaningful reform in the coming days. 

Other proposals, mentioned by Senator Susan Collins (R-ME), include “making sure that we have federal penalties for interfering with or threatening an election official or poll worker with violence.” 

Addressing these issues are important, yet many pressing issues remain. States across the country have passed or introduced increasingly aggressive laws fundamentally altering how elections are administered, and the Justice Department continues to investigate those who attempted to send fraudulent electoral votes to the electoral college. There remains much more work to do to strengthen American democracy.

Just the Beginning

The promise of bipartisan ECA reform is welcome news and addresses an acute threat that our democracy continues to face in 2022. However, if successful, this should be seen as a first step at the federal level to strengthen our democracy - not the only one.  

Here at RepresentUs, we have documented the numerous issues currently plaguing our democracy, from both Republican- and Democrat-led states passing severely gerrymandered Congressional districts to corporations openly attempting to undermine the will of American voters. If you’d like to stay updated on American democracy news that matters and join us in this fight, join our mailing list at the link below!