What role does Congress play in counting electoral votes every four years? What if a state submits two different slates of electors to Congress following a presidential election? What is a “failed election”?
These seem like pretty basic questions, and certainly ones for which we need clear answers. Amazingly, the process that governs how Congress counts electoral votes and resolves potential disputes every four years is governed by a law written 130 years ago in 19th century language which hasn’t kept up with the needs of our modern democratic system.
In the lead up to the 2020 general election, these questions haunted election experts and scholars from across the country, and that’s when most of us learned about the Electoral Count Act (ECA). It’s also when we learned that the law is out of date and does not provide the clear framework we need.
The ECA was born out of the Hayes-Tilden presidential election controversy of 1876 when Rutherford B Hayes and Samuel J. Tilden fiercely disputed the electoral college results from three states that would ultimately decide the election. Their dispute was resolved by the Compromise of 1877 — a decision that gave the presidency to Hayes and removed federal troops from the South, formally ending Reconstruction. The ECA was passed a decade later to avoid another 1876 crisis and provides the legal framework for casting and counting electoral votes for president and vice president. It also sets a timeline for states to transmit their electoral votes to Congress, defines Congress’ role in counting the electoral votes, and establishes procedures for recognizing and resolving disputes during the electoral vote count.
While the law took center stage on Jan. 6, 2021, it has been invoked three other times since its enactment by members of Congress to object to electoral vote counts from a certain state or states. Thankfully, we didn’t see the constitutional crisis that some people worried about last time. But what about 2024 and beyond? We should update this law — and do it now before the next political season begins.
To start, the law has not been updated since its enactment, and its use of 19th century language offers the opportunity for multiple interpretations of key terms. For example, the current legislation uses the term “regularly given” to describe the electors’ votes in a state, but election experts agree that this outdated language — when read in isolation — could invite an incorrect interpretation. While members of both parties have employed the ECA to raise objections to various issues in presidential elections in recent history — the ambiguities and gaps in the ECA exposed our country to enormous risk on Jan. 6 2021, as seen in the misguided calls for the then-vice president to unilaterally throw out the electoral votes from certain states. A non-partisan update to the ECA would underscore the strictly ministerial and ceremonial role of the vice president under the ECA in counting each state’s electoral votes.
We also saw confusion in the period between when states certified their results and when Congress counted the electoral votes on January 6th, 2021. While states decide how to resolve their own election disputes and contests, the ECA does not currently provide a way to enforce the finality of a state’s decision. The ECA needs to underscore this crucial finality — voters vote, officials count, states certify, and Congress has a limited role at the end in counting the electoral votes.
Finally, the ECA also allows for too much latitude to object to a state’s slate of electors and override the will of those voters — as was observed this year in the objections raised to Arizona and Pennsylvania’s official slates — and provides little guidance for resolving legitimate objections in Congress when the electoral votes are counted after each presidential election on January 6th.
The current ECA is arcane and out of date. The 117th Congress needs to pass a nonpartisan update that addresses the multiple weaknesses identified in the law over the past few decades to ensure that both parties understand their role in counting the slates of electors in the future. An update will help avoid uncertainty and a more destructive constitutional crisis in 2025 and beyond.
Perhaps even more importantly, passing a modernized ECA will prove that — even at a time of intense partisanship — both parties can meet at the water’s edge when it comes to strengthening our most foundational constitutional processes.
Meredith McGehee is the executive director of Issue One, a crosspartisan political reform group in Washington.
Elise Wirkus is Issue One’s legislative affairs manager.