The Progress toward Reforming the Electoral Count Act
In the past month, Congress has made important progress toward reforming the Electoral Count Act (“ECA”). These developments justify an update to our previous post on this complex area of federal election procedure.
As discussed in our first blog, the ECA dictates how Congress certifies presidential election results and officially declares the next President of the United States. The vagueness of the existing ECA law was at the heart of efforts to illegally and illegitimately nullify the free and fair 2020 election through violence. As the Select Committee on the January 6 Attack has uncovered, 147 Members of Congress and supporters of former President Trump sought to compel Vice President Pence to nullify certified election results and declare Trump the winner of the 2020 election. In response, in late July a bipartisan group of Senators, led by Republican Susan Collins and Democrat Joe Manchin, produced an ECA reform package.
The succeeding months saw pro-democracy organizations, including FairVote, provide extensive suggestions and analysis to Senate staffers about the Collins-Manchin reform. Those efforts culminated on September 27 when the Senate Committee on Rules and Administration passed a carefully modified version of that legislation. Senator Ted Cruz was the lone vote in opposition to the bill. Senate Minority Leader Mitch McConnell supports the bill, and Sen. Rob Portman expects that about half of the Senate Republicans will support the measure as well, which will likely receive a vote by the full chamber after the November elections.
On the other side of the Capitol, the leadership of the House of Representatives had not advanced specific ECA reform legislation, as the body seemed to have been waiting for the January 6 Committee to conclude its investigation and produce a report before the House would take up an ECA reform bill. However, perhaps in response to the Senate’s actions, on September 19, Representatives Zoe Lofgren and Liz Cheney introduced their own ECA reform bill in the House which had been crafted in private for some time. Superficially speaking, the Lofgren-Cheney bill is more broad in its impact and more detailed than the Collins-Manchin bill, though it contains provisions which would likely fail to gain support in the Senate. After having been available to the public for only two days, on September 21 the House rushed to pass the bill a week before the Senate planned the first committee vote on their own ECA reform bill. It is unclear whether the Senate plans on considering this House-passed bill in any meaningful way.
While details and differences are important, it’s crucial that one of these bills become law. Of course no law by itself can prevent violent insurrection, but either ECA reform proposal would clarify that no individual, whether a member of Congress or the Vice President, can decide whether the election results from any given state are legitimate. This reform remains deeply important in part because at least 291 nominees for federal or statewide office deny the results of the 2020 election – just like those who stormed the Capitol on January 6, 2021. Of those 291 election deniers, at least 171 are expected to win easily, and another 48 are currently in close and important races. For example, in most states Secretaries of State oversee state election administration. The organization Issue One has found that, “election-denying secretary of state candidates… have so far outraised their… opponents in Arizona and Indiana,” and are otherwise expected to win in Alabama, South Dakota, and Wyoming. If multiple states send individuals to Congress, Governor’s mansions, and election officials who subscribe to the outlandish conspiracy theories which form the basis for 2020 election denialism, many have indicated that they intend to further policies which would allow partisan officials to overturn actual election results. ECA reform would go a long way toward dissuading these efforts, and could halt them completely once they reach Congress. While neither proposal is perfect and both have weaknesses that FairVote has raised across Capitol Hill, they are worth our support.
While ECA reform is necessary, it is not sufficient to protect the legitimacy of our elections. Well before Trumpism and January 6, systemic voter suppression and gerrymandering have been popular tactics to unjustly influence election results. Since the last election nothing has been done at the federal level to address these issues, and 21 states have passed restrictive voting laws – many of which interfere with nonpartisan election administration – and gerrymandering has produced even fewer competitive districts.
Later this year, Congress must take the first step toward buttressing American democracy by passing ECA reform. The next necessary steps include bills such as the John Lewis Voting Rights Advancement Act and ultimately the Fair Representation Act which would together affirm ballot access, voting rights, and equally bring the voices of all voters to Capitol Hill, as democracy requires.
