DEMOCRACY WATCHCongress Passes Legislation That Will Close Off Presidential Election Mischief and Help Avoid Another Jan. 6
Presidential elections are complicated. But in a move aimed at warding off future crises like the Jan. 6, 2021, riot at the U.S. Capitol, the Senate and House have passed legislation to clarify ambiguous and trouble-prone aspects of the process.
Presidential elections are complicated. But in a move aimed at warding off future crises like the Jan. 6, 2021, riot at the U.S. Capitol, the Senate and House have passed legislation to clarify ambiguous and trouble-prone aspects of the process.
Currently, all 50 states and the District of Columbia hold simultaneous elections in November. The states and the district certify those results.
But that’s not the end of it.
When people cast votes, they’re actually voting for a group of people called “electors.” Groups of these presidential electors meet in December. They send their votes along to Congress, which counts them in January. The presidential candidate who gets the majority of electoral votes is, finally, declared the winner.
There are known weaknesses in these rules for how we administer presidential elections and tabulate results in Congress. Ambiguities in existing law have been exploited to try to make something go wrong. Legal theories were floated by allies of President Donald Trump after the 2020 election that suggested ways to undermine the results of the election, culminating in a failed insurrection at the Capitol.
That’s why a bipartisan group of congressional leaders aimed to pass reforms to the 1887 law governing this process, the Electoral Count Act, before the end of 2022.
As an election law scholar, I have suggested that Congress focus its reforms on a few crucial areas that could have wide bipartisan support. Now, it has done just that, and the omnibus government funding legislation that includes the Electoral Count Act reform passed the House on Dec. 23 and heads to the White House for President Joe Biden’s expected signature.
Discouraging Mischief
The legislation, known as the Electoral Count Reform Act, was originally a stand-alone bill but was ultimately incorporated into the omnibus spending bill just passed by Congress. The reform legislation went through extensive public vetting and had broad bipartisan support.
It does many small things, but it does a few big things that deserve public attention for their ability to deter mischief in this important process.
I testified at a Senate committee hearing on the legislation at the invitation of two co-sponsors of the bill, Sens. Amy Klobuchar, a Democrat from Minnesota, and Roy Blunt, a Republican from Missouri. I have also spoken with members of Congress about its importance.
Here are the four major reforms in the bill:
