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Explaining the Electoral Count Reform Act of 2022

By Steven Ellison, Esq. on October 06, 2022 9:32 AM

Article II of the U.S. Constitution states that the person receiving the most votes in the Electoral College becomes president. It doesn't say much about how the voting process should take place. So, in 1887, following a disputed presidential election, Congress created one that worked, more or less, for more than a century.

On January 6, 2021, we saw the process's shortcomings first-hand. To prevent electoral chaos from erupting again, Congress is considering reforms in a bill entitled, “the Electoral Count Reform Act of 2022."

Let's take a look at the current Electoral College process and see what the bill would do.

What Is the Electoral College?

The Electoral College is the group of electors required by the Constitution to elect the president and vice president. Each state and the District of Columbia appoint as many electors as they have representatives in the House and Senate.

Of the 538 electors, the winner needs a majority of 270 electoral votes. If no candidate earns a majority, the U.S. House holds a "contingent election" for the president, and the Senate does the same for the vice president.

How Are Electors Chosen?

Currently, electors are chosen by popular vote on Election Day. With the exception of Maine and Nebraska, all states and the District of Columbia use "party block voting," which means that the winning ticket gets all of the state's electors. In Maine and Nebraska, each congressional district chooses one elector and the ticket that wins statewide gets an additional two electors.

Each state's legislature determines its electors. Most of these legislatures leave it to the political parties to choose the electors. The only constitutional limitation is that federal office holders, such as members of Congress, cannot serve as electors.

What Do the Electors Do?

After the election concludes, a state official, typically the governor or secretary of state, certifies which ticket won and lists that state's electors. In December following the election, all electors meet and cast their ballots for president and vice president. Although the Constitution doesn't require them to vote for their state's winning ticket, many states have laws that prohibit or punish "faithless electors."

On the following January 6, the president of the Senate (the current vice president) opens the ballots and reads them to the House of Representatives and Senate. The candidates winning the majority of votes are sworn in on January 20.

Election Shenanigans

Sounds straightforward enough, but it really isn't. There are a lot of loopholes that willing parties can exploit.

For example, following the 2020 election, then-President Donald Trump's lawyers brought more than 60 lawsuits in courts across the country claiming voter fraud. He disputed not only the election results but also the validity of state elector certifications. He lost every lawsuit but one (and in that one, a voter ID case, the judge gave voters three days following the election to "cure" their ballots).

Another example occurred at the Capitol on January 6. A substantial number of Republican representatives objected to the Electoral College count. Further, Trump, still believing he won the election, publicly stated that then-Vice President Mike Pence could, and should, reject the votes cast by the disputed electors. The rest is history.

What Reforms Are in the Electoral Count Reform Act?

Regardless of whether you consider Jan. 6 a protest, riot, or insurrection, Congress is acting to ensure that whatever it was doesn't happen again. Sens. Susan Collins, R-Maine, and Joe Manchin, D-West Virginia, sponsored the bipartisan Electoral Count Reform Act of 2022. The bill would reform the presidential electoral process in a number of ways.

Conclusive Slate of Electors

One set of reforms would ensure that each state was represented by a single slate of identifiable electors. The bill would do this by:

  • Specifying that unless the state's constitution or law as of Election Day says otherwise, only the governor of the state can certify who the state's electors are
  • Providing for speedier, more streamlined, judicial review in case of election disputes
  • Requiring Congress to defer to slates of electors certified by the state's governor pursuant to court judgments

Role of the Vice President

The bill also clarifies that the vice president's role would be purely "ministerial." In other words, they would read the ballots, but they wouldn't have the power to accept or reject them.

Higher Objection Threshold

Right now, a single member of the House or Senate can object to an elector or a slate of electors. The bill would raise the objection threshold to one-fifth of the members of both the House and the Senate.

According to a law in place since 1845, a state legislature could override the popular vote by declaring a "failed election," a term that is not defined in the law. Some Trump supporters cited this law when challenging mail-in ballots that had not been received by Election Day. The bill would ensure that in case of "extraordinary and catastrophic" circumstances, a state could move its presidential election day.

What Other Reforms Are Being Considered?

On September 21, 2022, the House of Representatives passed the "Presidential Election Reform Act." Sponsored by Reps. Liz Cheney, R-Wyoming, and Zoe Lofgren, D-California, of the January 6 Select Committee, the House bill would substantially rewrite, rather than amend, the Electoral Count Act. Senate Minority Leader Mitch McConnell, who endorsed the Electoral Count Reform Act, said that the House bill, lacking broad bipartisan support, is a "nonstarter."

Will We See Presidential Election Reform?

According to a POLITICO/Morning Consult poll, a majority of Americans favor making it harder to overturn election results. While the House bill may be dead on arrival, the Electoral Count Reform Act, with broad bipartisan support in the Senate, has a good chance of ending up on President Biden's desk. No more January 6ths.

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