Senate Hearing and Press Briefing on Critical Updates to the Electoral Count Act

The U.S. Senate Committee on Rules and Administration will hold a hearing this morning at 10:30 a.m. ET on the need to update the Electoral Count Act (ECA), an outdated law from 1887 that outlines procedures for casting and counting Electoral College votes in presidential elections. 

Adav Noti, vice president and legal director of CLC, will participate in a press briefing at 3:00 p.m. ET today to discuss the hearing and answer reporters’ question about the ECA. RSVP here to attend.

WASHINGTON, D.C. – Trevor Potter, founder and president of Campaign Legal Center and Republican Former Chairman of the Federal Election Commission, issued the following statement ahead of today’s hearing: 

“We thank Chairwoman Amy Klobuchar  and Ranking Member Roy Blunt for holding today’s hearing on the urgent need to update the ECA to protect the will of the people. Our democracy cannot afford another presidential election plagued by the types of challenges we saw following the 2020 election—challenges that stem from the confusing way Congress receives and counts Electoral College votes.
Fortunately, bipartisan legislation has been introduced in the Senate to address the ECA’s most serious vulnerabilities. The Electoral Count Reform and Presidential Transition Improvement Act of 2022 (ECRA) would significantly improve the ECA to reduce opportunities for election sabotage and ensure that elections are decided by voters. While we know that there is still more work to be done to protect our freedom to vote, this bill is nevertheless a step in the right direction and provides critical safeguards for the results of presidential elections. 

“Following this hearing, members of Congress must come together to adopt the strongest possible checks and balances to prevent future attempts by bad actors to manipulate and undermine our presidential elections. We call on Congress, especially Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell, to act with the urgency that this moment demands.”  

Background on the ECA:

The Electoral Count Act of 1887 provides the primary legal framework for casting and counting electoral votes. The law is important because it sets a timeline for selecting electors and transmitting their votes to Congress. The ECA also establishes procedures for how Congress counts the electoral votes. However, it has not been updated since it was enacted more than 130 years ago. 

Following the 2020 presidential election, partisan actors attempted to exploit loopholes in the ECA as part of an organized attempt to overturn the results. While efforts to reject state-certified electoral votes and overrule the will of voters were unsuccessful, gaps and ambiguities remain in the ECA and are ripe for manipulation. 

In 2021, CLC convened constitutional experts from across the country and representing all political viewpoints to determine important updates to modernize the ECA. Some of the updates that these experts felt were necessary are included in the ECRA, a bill introduced by Sen. Susan Collins (R-ME) and Sen. Joe Manchin (D-WV), along with 14 cosponsors, last month:  

  • Prohibiting state legislatures from overruling their own voters. 
  • Resolving disputes about electors and electoral votes before they reach Congress. 
  • Strictly limiting opportunities for members of Congress to second guess electors and electoral votes. 
  • Clarifying the vice president’s ministerial role in the counting of electoral votes. 

A poll commissioned by Campaign Legal Center last year showed strong, bipartisan support among voters for updating the ECA. 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.