It now looks likely that the U.S. Congress will see a meaningful breakthrough after the Republican Senate Minority Leader Mitch McConnell announced last week that he supports a bill to reform America’s Electoral Count Act—the 1887 law governing the counting of electoral votes in the country’s presidential elections. The reform legislation, co-sponsored in the Senate by 11 Democrats and 11 Republicans, is an effort to update the law and clarify its dictates—with the aim of preventing a repeat of the political chaos that accompanied the Capitol Hill riots of January 6, 2021, as the former president Donald Trump and his allies variously pressured Vice-President Mike Pence and Congressional lawmakers somehow to overturn Joe Biden’s election victory. Pence and the majority of lawmakers ultimately abided by their duty to certify the election, but 147 Republicans voted to overturn it. So what do the proposed reforms to the Electoral Count Act mean for U.S. elections?
Andy Craig is a staff writer at the Cato Institute in Washington, where he covers election laws, electoral reform, polarization, and political incentives in the U.S. In Craig’s view, America’s system of casting and counting votes isn’t fundamentally broken—it survived January 6 and remains strong to this day—but the reforms to the Electoral Count Act now on the table would nevertheless be significant for American political life. By raising the threshold for objecting to vote certification, emphasizing that the vice-president only has a ceremonial job in the process, and adopting other changes related to the role of state governments, these reforms would eliminate the legal ambiguity and reduce the kind of confusion Trump was able to exploit to mobilize supporters, some ultimately to deadly violence.
Graham Vyse: What’s driving this reform effort in the U.S.?
Andy Craig: A lot of scholars and analysts believed the Electoral Count Act should be reformed even before January 6, but that day brought the issue to the center of American life. It galvanized a widespread desire for congressional action and ultimately brought together a broad, bipartisan coalition in favor of reform. As the law exists now, it’s vague, confusing, and poorly drafted in many ways. Over time, these problems enabled a series of wrong but not always totally implausible arguments that state officials, or Congress, or even the vice-president acting on his own could somehow change the result of the 2020 presidential election—which drove a mob to sack the Capitol.
Vyse: Given what a polarized political environment persists in the U.S., what explains bipartisan support for updating the law now?
Craig: Democrats very clearly want to repudiate Trump’s attempt to overturn the election and guard against a repeat of that—especially as Trump looks likely to be a candidate in the next presidential race. Reforming the Electoral Count Act would also strengthen the legal position of Republicans who would want to resist any pressure to overturn an election they might face. It’s worth nothing that a majority of Republicans in the Senate and many Republicans in the House did vote against last year’s effort to throw out electoral votes from Arizona and Pennsylvania.
Republican opposition to Electoral Count Act reform—which there hasn’t been very much of—has largely come, as you might expect, from the most dedicated Trump supporters. In the upper chamber of Congress, Senator Ted Cruz is a vocal opponent, but he lost the vote on whether to advance this reform in committee 14-1. In the lower chamber, in the House of Representatives, some Republicans who voted against it sound open to supporting the Senate legislation. In the U.S. Congress as a whole, there’s not too much energy devoted to opposition right now, even as Trump has been blasting the reform effort.
Vyse: How exactly would the proposed reform change the Electoral Count Act?
Craig: It would clarify the role of state governments. The U.S. Constitution says that each state appoints members of the Electoral College. These “electors” cast the official votes for president and vice-president after the general election, with each elector typically voting as their state voted. The Electoral Count Act reforms would repudiate the idea that you can convene a state legislature after Election Day to change how a state appoints its electors. The reforms would also create an expedited judicial process for dealing with the “rogue governor scenario”—in which a governor refuses to certify the correct electors—and update congressional procedures for counting and certifying Electoral College votes.
The system did hold. The states got it right. The courts got it right. Congress ultimately voted down the objections to state Electoral College votes, and the vice-president rejected the idea that he could decide the outcome of the 2020 election himself. When it came down to it, the people who needed to preserve the rule of law acted to preserve the rule of law.
The role of Congress is a little ambiguous in the text of the Electoral Count Act. The reform would raise the threshold for objecting to a state’s Electoral College votes: You currently need just one representative and one senator to do that. Then you have to go through a whole debate and a vote, and the House and Senate have to convene separately, and this takes hours. The Senate version of Electoral Count Act reform would make it so you’d need at least 20 senators and a fifth of the House to object. The House version would require a third of each chamber. And the objections raised after the 2020 election wouldn’t meet either of these thresholds. The reforms would also narrow the legitimate reasons that objections could be raised on, such as an elector voting for an ineligible presidential candidate, and it would clarify that the vice-president’s role is purely ceremonial.
Vyse: Ever since January 6, there’s been pervasive debate in America about whether an “attempted coup” took place on that day and how close the U.S. came to a real constitutional crisis—or even to the end of its liberal democracy. How do you understand that debate, and where do you come down in it?
Craig: Well, the system did hold. The states got it right. The courts got it right. Congress ultimately voted down the objections to state Electoral College votes, and the vice-president rejected the idea that he could decide the outcome of the 2020 election himself. When it came down to it, the people who needed to preserve the rule of law acted to preserve the rule of law.
On the other hand, it was very serious—and unprecedented—to have an incumbent president of the United States trying to steal an election. It’s not an exaggeration to say that, if Trump had succeeded, the U.S. would have an unelected autocrat illegitimately holding the presidency. No other president in the history of the republic has ever attempted to interfere with or reject the results of an election.
Some say the events of January 6 weren’t coherent enough to have possibly succeeded and so it’s an exaggeration to call them a coup attempt. There was certainly a lot of farce to January 6—Trump was being Trump, and the cast of characters around him was hard to take seriously in some sense—but it fits the definition of an attempted coup. Elements of the existing government, including the president, attempted to use extralegal means to seize power. His cabinet departments stood against it. The military wasn’t anywhere close to supporting it. Still, Trump betrayed his oath of office; it was very serious—even if he and his allies didn’t come close to succeeding—and managed to incite violence, with a mob chasing Congress out of the Capitol.
Vyse: Is there reason to think reform of the Electoral Count Act will have any effect on Americans who currently believe the 2020 election was stolen from Trump?
Craig: Electoral Count Act reform is about shoring up the guardrails of American democracy. It’s not necessarily going to convince people—nor is it intended to convince them—to give up believing in “Stop the Steal” conspiracy theories about 2020. It’s not itself a direct rebuttal to the notion of rigged vote counts and fake ballots.
It was very serious—and unprecedented—to have an incumbent president of the United States trying to steal an election. It’s not an exaggeration to say that, if Trump had succeeded, the U.S. would have an unelected autocrat illegitimately holding the presidency. No other president in the history of the republic has ever attempted to interfere with or reject the results of an election.
To the degree that Americans believe in that nonsense—which, yes, the former president is still promoting—it’s a real problem; but this reform would clarify that the law isn’t on their side. Going forward, it’ll be important for anyone getting pressure to overturn an election result to be able to point to this law and say, No, I can’t do that.
Vyse: Anxiety about free and fair elections in the U.S. isn’t limited to concern about the Electoral Count Act. There are worries about voting access and election administration at the state level. How significant are those issues to ensuring the health and legitimacy of the system?
Craig: I see a few different categories of issues here: There are issues related to discounting or overturning election results, which represent serious attacks on the rule of law and democracy. Then there are issues related to voting procedures and election administration, which can be debated within the normal bounds of partisan politics, where each party fights for changes that would give it a marginal advantage. Take voter-identification laws: I’m skeptical of increasing voter-ID requirements, but it’s not fundamentally illegitimate or undemocratic to debate the issue.
Most free countries have some kind of voter-ID requirement. Then there are questions such as how long to allow early voting, when the deadline to register to vote should be, whether same-day registration should be permitted, to what degree we should allow absentee voting or voting by mail. There are reasonable arguments to be had about these questions, and they’re mostly questions for states to address.
There are some more serious concerns, including gerrymandering across the U.S.—the process in which both parties draw the boundaries of electoral constituencies to favor their candidates. Nonpartisan reforms to that process would be good. When you have electoral districts that aren’t competitive between Democrats and Republicans—where state legislators and members of Congress are effectively elected in their primary races—that fuels a lot of partisan polarization. Those kinds of politicians don’t really answer to the general electorate. They just answer to their party’s most intensely motivated voters.
As well, the U.S. is a rather major outlier when it comes to the speed that votes are counted at: A lot of states take an unreasonably long time for various nuanced administrative reasons, and that’s not good for public confidence. Many concerns about threats to elections in the court system, including from Trump appointees, are overstated. In general, the kinds of appointees who’ve made it through the Senate confirmation process are serious people, who may each have their own ideological views but aren’t going to do something crazy. The Supreme Court itself effectively rejected the effort to overturn the 2020 election.
Vyse: How fundamentally safe do you see American elections being now?
Craig: Overall, the American election system is still quite sound. There certainly isn’t fraud on a large scale. The legal mechanisms of elections can be improved, but they went through a serious stress test, and they held. At the same time, it’s simply not normal or healthy in a democracy to have people seeking to fill election-administration positions on the premise that they can throw out election results on account of baseless conspiracy theories or mere allegations from the losing side of a campaign. It’s good to see Congress taking this seriously and working to prevent a scenario where somebody does something like this and there’s no way to handle it. Electoral Count Act reform is the most important action the U.S. Congress can take in response to what happened with the election-certification process on January 6, and the chances are looking good that it will pass by the end of the year.
