Electoral Count Reform and Presidential Transition Improvement Act aims to prevent interference with orderly transfer of power, like in 2020 election and January 6
This bill would mark the biggest correction to the process of counting since John-John corrected Herry Monster on Sesame Street.
Context: 2020–21
Joe Biden defeated Donald Trump in the 2020 presidential election. He won by both 306–232 in the Electoral College and by 51.3% to 46.8% in the popular vote, a difference of roughly seven million votes.
During the subsequent two months between the election and its official certification in Congress, numerous attempts were made to change that result: by Donald Trump himself, by his legal team, by his Republican allies in Congress, and by thousands of his supporters during the violent insurrection upon the Capitol Building on January 6, 2021 while Congress officially counted and certified the Electoral College results.
None of the Trump team’s attempts proved successful.
The Supreme Court rejected all of the Trump team’s legal challenges. State election officials, even Republican ones, refused to change their election certifications. Congressional Republicans’ attempts to challenge several states’ results, notably for Biden-supporting Arizona and Pennsylvania, failed. And Vice President Mike Pence refused to go along with an obscure legal theory pushed by Trump and his allies that, as vice president, he could unilaterally refuse to certify the election results.
Context: 1887
Most of the current rules regarding all these procedures date back more than a century, to the Electoral Count Act of 1887.
The law was inspired by the convoluted and heavily-disputed presidential election of 1876.
First, the candidate who received a majority of the popular vote (Democrat Samuel Tilden) failed to earn a majority of the Electoral College. Then, several states sent competing rival slates of electors to Congress — the Democrats sending a Democratic slate, the Republicans sending a Republican slate. On top of that, Congress appointed an unprecedented 15-member commission to essentially decide which candidate should be declared the winner.
By only a single vote, 8–7, the commission declared in favor of Republican Rutherford B. Hayes. That single deciding vote was cast by Supreme Court Justice David Davis, who had originally been nominated 14 years earlier by Abraham Lincoln.
The 1887 law was controversial even at the time; a law review article only the next year called it “very confused, almost unintelligible.” One of the law’s sentences even runs 275 words long.
For about 134 years, though, it arguably worked well enough. That is, until the events of 2020–21 laid bare several potential landmines in America’s electoral system which the law wouldn’t prevent — or, in some cases, would even inadvertently create.
What the bill does
The Electoral Count Reform and Presidential Transition Improvement Act would make several policy changes:
- Clarify the vice president’s role. Under current law, Congress counts and certifies the Electoral College votes to make it official, during a process led by the vice president, per their role as the president of the Senate. This bill would clarify that the vice president’s role in the Electoral College certification is purely ceremonial, and that they don’t actually have the power to change, overrule, or nullify any part of the count.
- Raises the threshold for Congress to object. Under current law, only one House member and one senator need to object to a state’s Electoral College certification, in order for Congress to vote on whether to exclude that state’s electors. For the 2020 election, those two thresholds were far exceeded: for Arizona, 121 House members and six senators objected; for Pennsylvania, 138 House members and seven senators. This bill would increase both thresholds for objection to one-fifth of both the House and Senate. Had this bill been law at the time, the Senate wouldn’t have met that threshold (although the House still would have).
- Clarifies which electors count. In case two or more factions within a state each try to send competing slates of electors to Congress for the official count, this bill lays out means for Congress to identify a single slate of electors from each state. It requires Congress to identify one state official (often the secretary of state) responsible for certifying their state’s electors, and requires the state’s electors themselves to be appointed prior to Election Day.
- Harder to declare a “failed election.” The bill also overturns a provision from the Presidential Election Day Act of 1845, which allows a state’s legislature to override their state’s popular vote if the legislature declares a “failed election.” Several states considered this option, namely ones in which the populace voted for Biden even though the legislature was still controlled by Republicans. (No state actually followed through.) This bill would only allow a legislature to override in case of “extraordinary and catastrophic” events.
The bill was introduced in the Senate on July 20 as S. 4573, by Sen. Susan Collins (R-ME).
What supporters say
Supporters argue that the 2020 election was a near-disaster for the American system’s peaceful transfer of power, and 2024 or another future election could be a breaking point unless we fix the laws now.
“We have before us an historic opportunity to modernize and strengthen our system of certifying and counting the electoral votes for president and vice president,” Sen. Collins said in committee testimony. “The idea that any vice president would have the power to unilaterally accept, reject, change, or halt the counting of electoral votes is antithetical to our constitutional structure and basic democratic principles.”
“Nothing is more essential to the survival of a democracy than the orderly transfer of power,” Sen. Collins continued. “And there is nothing more essential to the orderly transfer of power than clear rules for effecting it.”
What opponents say
There are very few public objectors to this legislation. “There has been notably little public opposition to the heart of the bill,” University of Iowa law professor Derek T. Muller wrote in congressional testimony, “and the bulk of that rare concern rests largely on misunderstandings of the text or technical problems that can be readily corrected.”
Norm Eisen — formerly Ambassador to the Czech Republic and now senior fellow in governance studies at Brookings — supports the legislation overall, but noted at least three further changes he still found necessary.
The bill “allows the extension of Election Day due to ‘extraordinary and catastrophic events,’” Eisen wrote in his own congressional testimony. “The phrase ‘extraordinary and catastrophic events’ should be better defined to avoid manipulation by the election-denying officials now running to take control of the electoral process.”
“Adjustments must be made to the scant six-day window for federal litigation under the [bill],” Eisen continued. “There must be adequate time for any federal litigation should governors or others wrongly certify or refuse to certify electors or otherwise abuse the process. Six days is insufficient.”
“To strengthen safeguards when the process moves to Congress, [the bill] should consider clarifying the grounds for objection by replacing undefined and malleable terms preserved from the current [law] such as ‘lawfully certified’ and ‘regularly given,’” Eisen concluded, “terms which have been a proven source of abuse in the past.”
Odds of passage
In addition to its Republican lead sponsor, the bill has attracted 17 bipartisan cosponsors: nine Republicans and eight Democrats. It awaits a potential vote in the Senate Rules and Administration Committee, which held a hearing on the bill in August.
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This article was written by GovTrack Insider staff writer Jesse Rifkin.
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