ARGUMENT: DEMOCRACY REFORMThe Lessons of the Electoral Count Reform Act: Next Steps in Reform

Published 2 February 2023

The passage of the Electoral Count Reform Act (ECRA), which President Biden signed into law on 29 December 2022, suggests there are achievable goals of democracy reform even as polarization retains its grip, we now have a divided government, and a presidential election is less than two years away.

The Electoral Count Reform Act (ECRA), which President Biden signed into law on 29 December 2022, is nothing short of a miracle in the annals of democracy reform,Bob Bauer and Jack Goldsmith write in Lawfare. It would merit that recognition at any time.

“But that it found a path through the highly polarized politics and pressures of the times makes the achievement all the more remarkable,” they write. “Already we have seen retrospectives that rightly note key factors contributing to its success, such as strong congressional leadership and the constructive use of bipartisan expertise on complex technical and constitutional questions. There is much credit to go around.”

Bauer and Goldsmith write that the ECRA experience also presents a possible model for thinking about what might be feasible in the next phase of federal-level democracy reform. They acknowledge that the divided 118th Congress will make for much tougher sledding for all such endeavors. “In the best of times, reform is caught up in party and other politics. This is even more true in a presidential election cycle in this sharply divided polity.”

They note that the five reasons why the reform effort worked in the Electoral Count Act case may also help shape the reform agenda for the near future:

First, nobody seriously disputed the merits of Electoral Count Act reform. The 1887 statute was a shambles in desperate need of fixing. Its weaknesses were papered over by widespread observance of norms governing the congressional vote count for over a century. Then the times caught up with it. The calamitous Jan. 6-7, 2021, session left no doubt that failure to amend the statute before the next presidential election posed unacceptable risks. 

Second, and this strength is not to be underestimated, the case on the merits was entirely compatible with common sense intuitions. By and large, there was agreement that Congress should not be able, on the whim of a partisan majority, to simply chuck out votes for president that they wish had been cast differently, and that the states should not be able to change the outcome of an election by changing the law after Election Day. There were a few voices here and there to suggest that perhaps the vice president did have the unilateral authority to reject election results or suspend the proceedings. But this was always a distinctly minority view on both sides of the aisle.