States on Deadline: Can Electoral Count Reform Act Updates Prevent Another January 6?
By: Jeanne Broome
Election Results Under Threat
Coordinated attempts to overturn the results of the 2020 presidential election tested the strength of election laws in unprecedented ways. The ambiguities of the Electoral Count Act (ECA) of 1887 were exploited by lawyers and supporters of former President Donald J. Trump to challenge election results. Their plan hinged on the vice president throwing out state certified electors and replacing them with “fake electors” who would vote for Trump regardless of state election results. Efforts to undermine and sow doubt in the 2020 election results culminated in the violent attack on the U.S. Capitol on January 6, 2021, as Congress was meeting to certify the results of the election.
The Electoral Count Reform Act
To reduce the chances of a disputed election in the future and to close loopholes in existing legislation, Congress passed the bipartisan Electoral Count Reform and Presidential Transition Improvement Act, or ECRA, in 2022. The ECRA, included in the 2023 omnibus spending bill, clarified ambiguities in the Electoral Count Act of 1887, which did not offer clear guidance on counting electoral votes or how to resolve potential disputes. Reforms under the ECRA were intended to bolster guardrails governing how Electoral College votes in presidential elections are counted and certified by states and then handled by Congress once there.
The ECRA contains several important provisions:
Federal:
Clarifies the vice president’s role in counting electoral votes as purely ministerial;
Raises the threshold for objections in Congress from one senator and one representative to one-fifth of both the House and Senate;
Requires Congress to defer to the slates of electors as determined by the states; and
Establishes an accelerated process for election disputes, involving a three-judge panel and expedited Supreme Court review.
State:
Sets the elector meeting date as the first Tuesday after the second Wednesday in December.
Mandates that a state executive (usually the governor) sends forward its slate of electors at least six days prior to the date on which the electors are to meet; and
Requires the certificate of ascertainment (the official document identifying the slate of electors) to include a security feature.
Implications for 2024:
The most pressing aspect for states to address regarding the implementation of the ECRA is to ensure that their election certification timeline is aligned with the now federally required deadline to convene on the first Tuesday after the second Wednesday in December. This date previously served as an optional “safe harbor” for states, with Congress not obligated to accept electors submitted after the date (something that had not previously occurred).
In the 2020 election, Wisconsin was the only state unable to finalize its slate of electors before the safe harbor date due to the adjudication of a recount-appeal lawsuit brought by the Trump campaign. Under the ECRA, it is unclear whether electors can be accepted after the deadline. This oversight poses a potential threat in states with particularly narrow electoral results that might face recounts or other lawsuits.
A potential challenge with the new deadline imposed by the ECRA is that if the deadline to submit electors is interpreted as final, electors submitted after the election deadline may not be counted in the Electoral College. While states historically submit their electors on time, a coordinated, strategic influx of court challenges by candidates and their allies could lead to a backlog that overwhelms the court process, even in the expedited system for election claims established by the ECRA.
Since the passage of the ECRA, 12 states have passed legislation that aligns their statutes with federal law, and the changes range from specifying the certifying official to adjusting timing requirements. While not all states may need to update their laws, the lack of widespread legislation is notable. Of the states considered most contested in 2024 and likely to determine the presidential election outcome, only Michigan, North Carolina, and Arizona have passed legislation to ensure their post-election timeline will comply with the deadlines set forth in the ECRA. Meanwhile, several states with a history of close margins and legal challenges to elections have not yet updated their laws. The Pennsylvania legislature is currently considering legislation, and its lower chamber passed a bipartisan bill on July 10, 2024 that would cement the timelines for resolving post-election legal battles and prevent delays in finalizing the state’s electoral votes.
Recommendation:
States should work backward from the elector certification deadline, December 2, 2024, to update their timelines for the post-election process, accounting for potential lawsuits, recounts, and other procedural hangups. Several states have implemented laws explicitly addressing the Electoral Count Reform Act, some of which directly cite the United States Code to leave no question as to whether their laws comply with federal election requirements. The current political climate and the injunctions that prevented timely certification of Wisconsin’s electors in 2020 make it imperative that state legislatures pass legislation to ensure their post-election processes operate promptly.