January 6th Congressional Hearings Highlight the Urgency of Updating Electoral Count Act

 U.S. Vice President Mike Pence and U.S. House Speaker Nancy Pelosi, along with other staff, take part in a joint session of the Congress to certify the 2020 election results at the U.S. Capitol.
U.S. Vice President Mike Pence (center) and U.S. House Speaker Nancy Pelosi (right) take part in a joint session of the Congress to certify the 2020 election results at the U.S. Capitol in Washington, D.C., the United States, Jan. 6, 2021. The U.S. Congress certified Joe Biden's presidential election victory early Thursday morning, after supporters of outgoing President Donald Trump stormed the Capitol, halting the certification process for several hours. Photo by Kevin Dietsch/Pool via Xinhua

A bipartisan, select committee in the U.S. House of Representatives continued a series of hearings this month about the January 6th attack on our country. The third hearing shined a light on the need for Congress to update the Electoral Count Act of 1887 (ECA), which provides the primary legal framework for how presidential votes are cast and confirmed.

Because the next presidential election could be one of the most contentious ever, the time to act is now. Congress must build on evidence presented by the January 6th Committee and urgently update the ECA to help avoid another attack on our country and protect our freedom to vote.

When Americans cast their votes for president and vice president, they do so indirectly by voting for their state’s slate of electors. Electors in each state then meet after Election Day to cast their votes, and those votes are sent to Congress, which counts them 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.

As part of its presentation on the organized effort to overturn the 2020 election, the House committee provided evidence in its third hearing outlining the campaign to pressure then-Vice President Mike Pence to use his presiding role to refuse to count the lawful electoral votes from key states when Congress met to count the election results on Jan. 6, 2021.

Notably, the ECA has not been updated since it was first enacted more than 130 years ago, and it is rife with imprecise language, gaps and ambiguities that President Trump and his allies attempted to exploit in the weeks leading up to the January 6th attack.

Although the attempt to overturn the last presidential election failed, the obscure language of the ECA unfortunately remains ripe for manipulation. Moving forward, partisan actors could try again to exploit the ambiguities in current law.

That’s why Congress must update the ECA to clarify the role of the vice president and Congress in counting electoral votes.

The fourth hearing that occurred this week focused on how these partisan actors also pressured state and local officials to overturn their jurisdictions’ certified election results. The ECA outlines the process of sending slates of electors to Congress as part of the Electoral College, which bad actors took advantage of to create false slates of fake electors in key battleground states.

Another key update to the ECA must include defining the rules and procedures for objections in counting electoral votes and raising the threshold for objections. The updated ECA should establish clear timetables and articulate appropriate processes for resolving post-election disputes.

Following the 2020 election, CLC commissioned a poll that showed strong bipartisan support for updating the ECA, with voters favoring reform by a 44-point margin. This poll also found that most voters (58%) believe there is a real threat that a party in Congress will try to overturn the results of an upcoming presidential election to put their own candidate in power.

But with the 2022 and 2024 elections right around the corner, time is running out. Elections should be decided by voters, not partisan politicians. By moving to update the ECA, Congress can help to prevent future attacks on our country like what we saw on January 6th. And they must do it now.

Eric is a Senior Manager, Legislative Strategy at CLC.
Key Takeaways from the First January 6th Congressional Hearing