Policy Issues / Election Integrity

Primer: Senate’s Electoral Count Act Reform Exacerbates Election Integrity Woes and Incentivizes Process Fouls

by CRA Staff

September 1, 2022

Summary

On July 20, Sens. Susan Collins (R-ME) and Joe Manchin (D-WV) introduced the Electoral Count Reform and Presidential Transition Improvement Act in a bid to flesh out existing statutes under the Electoral Count Act (ECA) of 1887. The bill is ostensibly aimed at providing improved clarity to the process of certifying and counting electoral votes for both the President and Vice-President.

The provisions introduced in the Senate’s proposed legislation are not designed to stand for another 150 years, but rather to rebuke–through statute–the notion that the people’s representatives should have the tools available to address suspected election irregularities during the certification process.

Brief Background

The Electoral Count Act was enacted in 1887 to outline the specific processes with which electors are counted and presidential contests are certified. The ECA was devised in large part due to the fallout from the contentious election of 1876 between Rutherford B. Hayes and Samuel Tilden. In that election, both parties reported that their candidates had won the electors from South Carolina, Florida, and Louisiana, which created chaos within the certification process. Ultimately, this dispute culminated with the end of Reconstruction through the Compromise of 1877 in which Hayes was elected President and federal troops were removed from the post-Civil War south.

Proponents of reform argue that the current statute is vague and requires modernization. And indeed, the current ECA does lack clarity on which officer of a state is required to certify the results despite the broad interpretation that it is the governor of each state. Section 4 of the ECA contains detailed procedures for the certification and vote-counting process outlined in the 12th Amendment. However, many of these details are themselves somewhat open to interpretation and fail to address potential dispute scenarios. Of greater concern is the fact that the ECA unconstitutionally inserts a state’s executive officials into a process that, under Article II, is the sole province of the state legislature. Rather than correcting that flaw in existing law, the proposed ECA legislation exacerbates this problem.

It is notable, however, that no serious effort to reform the ECA materialized until after certification challenges arose from 140+ House Republicans following the 2020 election. Opposition to the certification of electors was driven by widespread concerns in key states over illegalities such as ballot stuffing, ballot harvesting, drop boxes, and altered state election protocols in the months and weeks leading up to the presidential election.

In 2005, some 32 congressional Democrats objected to the certification of Ohio’s electoral votes which went for then-President Bush following the 2004 presidential election. At the time, this effort largely drew positive attention–not for efforts to modernize the ECA–but rather, to engage in federal “election reform.”

In some legal circles, there is a belief that the ECA itself is unconstitutional. These scholars argue that the Founding Fathers intentionally sought to constrain congressional authority for the selection of the President and Vice-President except in rare occurrences wherein there was no clear winner of the Electoral College. The rationale is that the Founders did not want Article II to become subservient to Article I and thereby undermine fundamental institutional tenets necessary for the separation of powers among the three branches of government.

The ECA, in its current form, provides for just a single member of Congress to object to a state’s certification, thereby requiring an objection to be heard and ultimately resolved by the entire body. The Collins-Manchin proposal elevates that threshold to one-fifth of the House’s representatives and one-fifth of senators, a substantial increase in the threshold for congressional challenges to the certification process.

However, proposed solutions for reforming the ECA in this particular bill pivot to the courts to expedite and adjudicate claims over electors and certification concerns arising from disputed slates. This too has the potential to threaten separation of powers by granting Article III greater authority to dismiss or determine certification disputes regarding the President and Vice-President.

The certification process and the manner in which these issues are adjudicated are inherently political processes and the Constitution leaves resolution of these questions up to state legislatures. Empowering unelected judges, as this bill does–through the creation of a tribunal or judicial panel–to make final determinations on objections and matters of resolution has the potential to further degrade public trust in our institutions. While important checks and balances with regard to the three branches of government must be maintained, lawmakers should be extremely cautious about crafting a reform that provides minimal recourse for both voters and their representatives to properly scrutinize the certification process in the lead-up or aftermath of a presidential election.

Bill Analysis

The proposed legislation has a number of policy weaknesses that potentially undermine the stated purpose of the reform effort. These include:

• Ineffective Dispute Mechanisms: The legislation creates a panel of three Article III judges who are granted purview over federal certification disputes related to the election of the President and Vice-President. The devised process does not provide for the resolution of state-level claims, which comprise the majority of election-related disputes and are governed by state election codes. It is impossible to separate the issues related to election challenges under state law from the certification disputes. The fast-track language is designed to dismiss cases instead of beginning the discovery process – and federal courts are not the appropriate forum for determining violations of state election law. Additionally, the panel is designed to oversee certification disputes after an election, negating the ability of presidential candidates to make use of the panel regarding claims prior to election day.
• Additional Ambiguity: The legislation expands the definition of “election day” to incorporate modified periods of voting “necessitated by extraordinary and catastrophic events as provided under laws of the State enacted prior to” election day. The new definition inserts ambiguity into federal law as to the prescribed time of elections under the existing statutes.
• Pandemic Voting Protocols: The expanded definition of “election day” has the potential to incentivize states to permanently enact pandemic-era policies to match federal language outlining “extraordinary and catastrophic events.” These policies–which can include expanded early voting windows and post-election day counting–are among the most susceptible provisions for fraud.
• Constrained Congressional Process: In Section 109, the bill enacts new restrictions on the congressional process for counting electoral votes. Specifically, the legislation reinforces a “ministerial” role for the Vice-President under the 12th Amendment in presiding over the meeting and explicitly denies the Vice-President the power to reject, adjudicate, or resolve disputes over electors. Furthermore, Section 110 of the bill requires one-fifth of Senators and Representatives to present in writing their objections, limits certification objections to whether an elector was lawfully certified or counted, and limits debate over objections to just two hours. Such extra-constitutional procedures are arbitrary and not consistent with the plain language of the Constitution, which vests power in the state legislatures to choose presidential electors.
• Empowered Bureaucrats: The bill grants the Department of Justice (DOJ) the authority to issue non-binding guidance regarding the ECA reforms. This could empower federal bureaucrats in the Voting Rights Division (among others) to halt states from conducting election audits and engaging in other actions to bolster election integrity. While the legislation confers such authority in a non-binding manner, judges will assuredly utilize proposed guidance from the DOJ as the standard, meaning states that deviate from DOJ’s guidance will be viewed as breaking the law. Further, the leftist bias of the DOJ, particularly in the Department’s Voting Section is not a myth. This provision creates a partisan bias by virtue of the failure of the DOJ to maintain equal justice under law as the abiding principle of the DOJ Voting Section – a pattern that exists at present and has for many years.
• Undermined Electoral College: Section 109 changes the “determination of majority” in specific circumstances that could undermine the current framework of the Electoral College: The total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained. This lays the groundwork for statutory changes to the totals necessary to win the Electoral College. Elsewhere the bill requires a 3-judge panel to resolve disputes which  opens the door for activist lawyers or partisan state actors to take advantage of the so-called “dispute resolution” as an opportunity to delay the certification and ultimately reduce the majority needed under the Electoral College. When the number of electors to reach the majority has been reduced from 270, it is a fundamental change to the Electoral College and the politics of electoral process. This opens the door for national popular vote measures which would abolish the constitutional framework for electing the President and eliminate essential checks against raw power and tyrannical majoritarianism.
• Forced Acceptance of Electors: The bill includes a provision that requires Congress to accept the slate of electors that are submitted by each state. In states with divided control between the two major parties, this provision could open the door for the executive/state official in charge of certifying the election to submit a slate of electors in a very close election that does not comport with the actual election results. In such a scenario, Congress would be bound by law to accept the submission regardless of the slate’s make-up.

The legislation does provide important clarity on which state official or executive certifies his or her state’s results–allowing for states to define that accordingly within their own election laws. And the bill eliminates the so-called “messenger penalty” wherein a $1,000 fine is imposed on messengers tasked with delivering the certification results when they “neglect to perform the services required.” 

Conclusion

The proposed legislative reforms to the Electoral Count Act may scratch the political itch of the Beltway class to repudiate federal lawmakers who objected to the certification of key states following the 2020 election, but it contains numerous provisions that undermine essential historical processes and institutions that have served America well for over two centuries.

Congress should resist the temptation to “modernize” the Electoral Count Act if such reforms add ambiguity to the law, empower fraud-prone voting procedures in the states, erect judicial panels acting as an unelected national election commission, and provide statutory openings for future far-left efforts to abolish the Electoral College.