The Electoral Count Act (ECA) of 1887 sets out the process of casting and counting electoral votes after a presidential election. It is intended to encourage states to resolve controversial electoral outcomes prior to sending results to Congress in order to avoid the conflicts of interest and pursuit of partisan power that would likely occur if Congress were charged with resolving every election dispute.
Unfortunately, the text of the ECA is confusing and antiquated, which means the counting of electoral votes remains vulnerable to abuse by partisan actors. The ECA should be updated to provide clarity and security to this process. This should be a bipartisan priority, as such a change would not lead to any partisan advantage for either party. The winner of such critical legislation would only be American democracy itself.
TO DO
This is your opportunity to express support for our election system and the peaceful transfer of power. Read more below about the Electoral Count Act and its need for improvement. Then invite your senators to publicly express support for the bipartisan effort that is taking place to update the ECA. Talk about the ECA and the necessary updates with your friends and family, then invite them to participate in this call to action as well. Follow MWEG for information about future events to learn more about this effort. Go HERE to submit a letter.
BACKGROUND
Why is clarifying the Electoral Count Act important today?
The language of the Electoral Count Act of 1887 is vague and outdated, leaving the process of election certification open to manipulation and abuse. The nonpartisan National Task Force on Election Crises has recommended that Congress update the ECA in order to preserve our tradition of peaceful transfers of power between presidents.
The events of January 6, 2021, were an organized attempt to take advantage of ambiguity in the law in order to override the counting of the electoral votes and manipulate the election outcome. Updating the ECA would help prevent a repeat of such events by, among other things, clarifying that neither the vice president nor members of Congress have the right to use federal authority to dismiss a state’s electors and substitute their judgment for the will of the people.
Though we hope that, in the future, our elected officials will always uphold their oath of office (see MWEG’s first principle of ethical government), it is best if our democracy is protected from the abuse of power by established and clear law when possible. This would also have the vital benefit of increasing the public’s trust in our electoral processes.
As we watch the January 6 hearings, we have a better understanding of the dangers and vulnerabilities the ambiguity in the system can cause. We have the opportunity to improve the laws that protect our democracy and guard our peaceful transfer of power.
During his testimony before the January 6 Committee, retired federal judge J. Michael Luttig said:
“A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge.
“Had the Vice President of the United States obeyed the President of the United States, America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.”
“This very day, the former president, his allies, and supporters pledge that, in the presidential election of 2024, if the former president or his anointed successor as the Republican Party presidential candidate were to lose that election, that they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020. I don’t speak those words lightly.”
Additionally, Mike Pence stated, “The presidency belongs to the American people and the American people alone. And frankly, there is no idea more un-American than the notion that any one person could choose the American president.”
While Trump lawyers recognized there was ambiguity in the ECA and attempted to exploit it, multiple lawyers have concluded there is no textual or historical precedent for the vice president having the authority to decide the winner of a presidential race.
What is the history of the Electoral Count Act of 1887?
Though the Constitution (in Article II, Section I, and in the 12th Amendment) governed the counting of electoral votes, it became evident after the presidential election of 1876 that these provisions were insufficient, on their own, to guide the states and Congress in certain situations.
The 1876 presidential election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden was one of the most controversial and disputed elections in our history. There was disagreement in four states (Florida, Louisiana, South Carolina, and Oregon) regarding who the official slate of electors included. Enough state electors were disputed that the resolution of this conflict would determine who was elected the next president. Ultimately, this constitutional crisis was overcome by the establishment of an electoral commission that purportedly helped to broker a compromise (though one that included the withdrawal of federal troops from the South).
However, the next two presidential election cycles also yielded results that were quite close. Congress decided additional legislation was necessary to ensure that a state was responsible for resolving its own electoral disputes. This was intended to constrain the role of the vice president and protect against the conflicts of interest that would arise if Congress became too involved in determining the outcome of an election, which could clearly lead to manipulation or abuse for partisan political advantage.
The Electoral Count Act of 1887 was therefore designed to specify the process by which a state should resolve internal disagreements about election results prior to sending its certified electoral votes to Congress for counting. Unfortunately, even contemporary observers recognized the bill’s shortcomings, with prominent political scientist John Burgess calling the text “very confused, almost unintelligible.”
What changes to the Electoral Count Act are proposed?
While legislation to update the ECA has not yet been introduced, a bipartisan group of senators are working on new, updated legislation for the Electoral Count Act. This will include defining the role of the vice president as limited and ministerial. In light of the events of January 6, it must be clarified that the vice president does not have the power to determine the result of the election by personally deciding which electoral votes are or are not acceptable. This protects elections from the vice president, and it also protects the vice president from the people. There is no constitutional precedent for any election in America being decided by one individual. Were this to be so, it would expose this individual to significant pressure, risk, and potential harm.
As it currently reads, the ECA is vague about what qualifies as an emergency situation, where a state could choose electors after Election Day. The ECA mentions a “failure” of a state’s election process, but it does not provide specifics about what timing would be allowed to resolve the issue. Such ambiguity is unhelpful and could be manipulated for partisan ends. Though the ECA mentions that state election results settled by the “safe harbor” deadline are “conclusive,” this provision should be strengthened with judicial enforcement. We must protect a state’s right to certify its own election results without fear of congressional manipulation.
At present, only one member of each chamber of Congress must object to counting electoral votes in order to disrupt the process. This is an incredibly low threshold. The proposed legislation will raise the threshold for objection of states’ slates of electors from the current one member 20% in each house. The nonpartisan National Task Force on Election Crises recommends that updating the ECA should also establish acceptable grounds on which an objection can be raised. For instance, while dislike of the election outcome should not be acceptable grounds for a member of Congress to challenge a state’s electors, evidence of an illegally selected slate of electors would be (i.e., a slate is submitted by the wrong state official in violation of state law). Grounds for objecting to electoral votes should be similarly narrow (e.g., an elector was bribed). This would also help members of Congress defend themselves against partisan pressure by clearly explaining exactly what they can and cannot do. It would also prevent one individual from disrupting the process out of spite or for personal or political gain.
The collaborated revisions include a provision that would fund security for election and poll workers through grants from the Help America Vote Act. This is unexpected but welcomed in our current environment of attacks against this vital work force.
Finally, as negotiations continue, it is important that the ECA include dispute resolution guidelines for worst-case scenarios. The current ECA attempts to address such a crisis, but it leaves several gaps and inconsistencies. There must be a clearly established and definitive process for the resolution of many potential forms of a presidential election dispute. For instance, it must be clear what should occur if there is a deadlock between the two chambers of Congress over whether to count a slate of electors or which slate to count (if there is more than one from the same state).
Why should this be a bipartisan reform?
Updating the Electoral Count Act provides no partisan benefit. Instead, it instills trust by protecting peaceful transfers of power and ensuring the health of the American experiment in democratic governance. Polling shows that the majority of Americans support updating the ECA. However, to avoid the appearance of partisan advantage, a thorough clarification of the ECA should occur in a timely manner, before any political advantage emerges relating to the 2024 presidential election.
As MWEG’s Principles of Ethical Government (PEG) 1b and 1c state: “Government officials and institutions should be honest and transparent, insofar as possible,” and “elected and appointed officials and government employees alike must eschew conflicts of interest and avoid the appearance of a conflict of interest in fidelity to the public trust.”
In addition to securing our democratic elections (PEG 2a), updating the ECA would bolster national security during a period of time that has historically been vulnerable. Like many countries, the U.S. is most at risk to foreign threats from our adversaries during times of transition. Our presidential transition period is long by most measures, as it was established during a period of our history in which traversing a large nation was difficult. In a modern age, this increases our national exposure to foreign risks if leaders do not accept defeat or work amicably to transition the government.
These unique circumstances require clear guidelines for behavior, making it crucial that electoral votes are counted in a timely manner and that the current and incoming administrations begin collaborating to ensure peaceful transfers of power. Furthermore, the chaos and uncertainty that would result from disputed election results and a precarious transition period would very likely cause economic instability. It is thus in the best interest of our nation and the American people to ensure the ECA is updated in a clear and precise manner.
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