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Congress Passes Electoral Count Reform Act of 2022 To Deter Future Election Manipulation Schemes

Civil Rights Policy Brief #199 | By: Rodney A. Maggay | January 9, 2023

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President Joe Biden signs the bipartisan omnibus bill which includes a number of administration priorities and officially avoids a government shutdown, ending what he called a “year of historic progress.”

Photo taken from: @ POTUS via Twitter

 

Policy Summary

On January 6, 2021 rioters supporting then – President Donald J. Trump broke through the barricades and stormed the U.S. Capitol building.

During the breach of the Capitol building Congress had been in session opening official electoral ballots submitted by each state for the 2020 presidential election and certifying the totals. 

Following the General Election in November 2020 and the voting of the Electoral College in December 2020, the certifying of the electoral votes in Congress was the final step to make the 2020 election results official. President Joe Biden had defeated then – President Donald Trump 306 – 232 in the Electoral College with 270 required to win. However, supporters of President Trump had bought into President Trump’s “Big Lie” that he had actually won the election and that Joe Biden and his associates had somehow stolen the election from him.

It was later revealed that President Trump and other public figures had hatched a scheme to overturn the election. Their plan focused on Vice – President Mike Pence’s role presiding over the electoral count session in his official capacity as Vice – President. What President Trump wanted to do was try to get Vice – President Pence to refuse to accept Electoral College ballots submitted by states in order to sow confusion on the results. 

If this resulted in no clear winner in the Electoral College vote, the President would then be selected by the House of Representatives with each state getting one vote regardless of the number of Representatives the state had. With fifty (50) states total, all a candidate needed was for twenty – six (26) states to vote for a candidate, as is required under the Twelfth Amendment to the U.S. Constitution.

President Trump’s plan to “throw the presidential election to the House” was based on ambiguities found in the Electoral Count Act of 1887. That federal statute governs the process for how a president and vice – president are elected and how ballots from the Electoral College will be counted by Congress. But the law was not clear on many points which gave an opening for President Trump and his supporters to try and manipulate the election to their liking.

In response to the gray areas found in this particular law, bipartisan members of Congress worked to clarify the procedures and to close gaps in the law so that no one could exploit those vulnerabilities again. In July 2022, the Senate introduced these changes in the Electoral Count Reform and Presidential Transition Improvement Act of 2022, which received wide bipartisan support. The House of Representatives responded with their own improvements with the Presidential Reform Act of 2022. 

That passed in the chamber by a vote of 229 – 203. After the differences in the bills were resolved, the bill was included in the 2023 Omnibus Appropriations bill, which was signed into law by President Biden on December 29, 2022. LEARN MORE, LEARN MORE

Policy Analysis

The tragedy of the Electoral Count Act of 1887 (ECA) is that it was intended to provide the steps and process as to how Congress counts electoral ballots to elect the president and vice – president but was instead used by Donald Trump and his allies to try and subvert a free and fair election. 

Because the law was written so poorly, it gave Trump and his associates an opening to try and keep Trump in the White House when he had lost the election. Without clarifying what certain terms and clauses meant the law provided that the vice – president would “preside” over the session that counts the electoral college ballots, that if a state “failed to make a choice” that it could designate another alternate election and that a Member of Congress could object to a ballot if the vote was not “regularly given.”

The choice of these words and the lack of any guidance allowed these terms to be subject to various interpretations. Luckily, Congress stepped in and clarified what meanings certain terms would have while adding new safeguards.

The changes with the new law are significant. First, to prevent a future incident where a vice – president might be bullied into not accepting a slate of electors as President Trump tried to do to Vice – President Pence, the law now clarifies that the role of the Vice – President in presiding over the session opening the electoral ballots is simply a “ministerial” role. Under the law now, the sitting vice – president presides over the joint session of Congress and has no ability to determine, accept or reject the slate of electors. 

The slate delivered to the session is for the Vice – President to merely announce and nothing more. The interpretation put forth by Trump that the Vice – President could refuse to accept a slate not to his liking can no longer occur.


Rep. Jamie Raskin (D-Md.) opines that the Electoral Count Reform Act that Congress passed to adjust federal election law was necessary but “doesn’t solve the fundamental problem” of the Electoral College. The college he says is a danger as there are many “curving byways and nooks and crannies” that some can use to create “strategic mischief.”

Photo taken from: Peter Afriyie

Second, the new law raises the threshold for Congress to object and debate whether to accept a slate of electors from a state. As seen on January 6, 2021, all that was needed was for one Member of Congress to object before Congress would debate on the slate of electors. Now, that threshold has been raised. Both houses of Congress would have to have one – fifth of the members of each house object. 

In the Senate that would mean twenty Senators would have to object. And, in the House of Representatives that would mean eighty-seven Representatives would have to object, too. This would prevent one member from objecting for frivolous reasons and ensure that there is widespread support if there is a legitimate reason to object to accepting a state’s slate of electors.

 

And finally, the new bill streamlines the submission of electors to Congress from each state. The law recognizes that the state’s governor is the only one who can submit the certificate of ascertainment of a state’s electors and no other state official. This was included to prevent a “fake” slate of electors from being submitted as had been mentioned as a scheme from some states. And the law also provides for quicker judicial review by prioritizing suits from candidates who may want to challenge a certification of electors with a direct and quicker appeal to the Supreme Court. 

The law also strikes from the statutes a law that allowed states to declare a “failed election.” All of these reforms are now law and significantly diminish, if not out right eliminate, the ambiguities and gaps in the law that President Trump and his allies tried to use to overturn a free and fair election. LEARN MORELEARN MORE

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

Engagement Resources​

Click or tap on resource URL to visit links where available 

American Civil Liberties Union (ACLU) – non – profit group’s statement on support for the Electoral Count Reform Act of 2022.

Protect Democracy – non – profit group’s infopage on the Electoral Count Reform Act of 2022.

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