As state houses across the country wrap up their 2023 legislative sessions, several states have taken important steps to update their election laws to conform with the new Electoral Count Reform Act of 2022 (ECRA). Colorado, Indiana, Kansas and North Dakota enacted legislation this year that aligns their timelines for presidential elections with...
Updating the Electoral Count Act to Protect the Will of the People in Presidential Elections
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At a Glance
The 2024 presidential election is likely to be one of the most contentious ever. In advance of the 2024 election and to protect the will of the people, Congress must update the Electoral Count Act (ECA) of 1887, an outdated law that provides the primary legal framework for casting and counting Electoral College votes in presidential elections.
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About this Action
The president and vice president are chosen by the Electoral College, which is composed of individuals called “electors” from each state. When Americans cast their ballots for president, they are actually voting for their state’s slate of electors. After Election Day, electors meet in their respective states to cast their electoral votes and send those votes to Congress. The role of Congress is to count the electoral votes from each state to confirm the winner.
The ECA sets a timeline for selecting electors and transmitting their votes to Congress. The ECA also establishes procedures for how Congress counts the electoral votes and the role of the vice president, who presides over this process under the 12th Amendment as the president of the Senate.
To help prevent future attempts of election manipulation due to outdated language in the ECA, Campaign Legal Center (CLC) has urged Congress to modernize the ECA by the end of 2022. Legislation to update the law should:
- Prohibit state legislatures from changing the law after Election Day to overrule their voters and the results of the popular election
- Provide procedures to resolve disputes about electors and election certifications before those disputes reach Congress
- Strictly limit opportunities for members of Congress to second-guess states’ certified election results
- Clarify the vice president’s ministerial role in the counting of electoral votes and reinforce that the vice president does not decide election results
A poll commissioned by CLC, Protect Democracy, Issue One and RepresentUS showed strong, bipartisan support for updating the ECA, with voters favoring updating the ECA by a 44-point margin after receiving a basic explanation of what the legislation would do. It also highlighted the serious concern held by a majority of voters (58%) that one party in Congress could try to overturn the results of an upcoming presidential election to put their own candidate in power.
What Congress Has Done
On July 20, 2022, a bipartisan group of senators, led by Sens. Susan Collins (R-ME) and Joe Manchin (D-WV), introduced the Electoral Count Reform Act (ECRA). Soon thereafter, the U.S. Senate Committee on Rules and Administration held a hearing that demonstrated the widespread consensus among experts and across the political spectrum about how the ECA should be modernized.
On September 19, 2022, Reps. Zoe Lofgren (D-CA) and Liz Cheney (R-WY) introduced a separate proposal in the House to update the ECA, the Presidential Election Reform Act (PERA). Their legislation was swiftly brought to the House floor, where lawmakers voted to pass the bill by a vote of 229-203.
On September 27, the Senate Rules Committee held a business meeting to advance the ECRA in the legislative process, adopting bipartisan amendments that strengthen the bill and set the stage for a floor vote by the full Senate before the end of 2022.
On December 23, Congress passed the Electoral Count Reform and Presidential Transition Improvement Act as part of the omnibus bill. On December 29, President Joe Biden signed the bill into law.