Buried in the general year-end spending bill is Congress’s first sweeping effort to prevent someone like former President Donald Trump from trying to steal the presidential election again.
The Electoral Record Reform Act (ECRA) – created by senators from both parties and endorsed by leaders Chuck Schumer and Mitch McConnell – clears up many ambiguities in US law about how the presidential result is determined and creates new safeguards against interference with results.
After Trump lost key swing states in 2020, he worked feverishly to try to overturn Biden’s victories in those states. He lobbied nearly every institution or official with a role in the process — state legislators, state officials, members of Congress and the vice president — arguing that those officials should reject statewide results, rather than respect them.
Designed specifically with Trump’s abuses of power in mind, ECRA takes down this list of institutions and offices and tries to make it harder for any one of them to corruptly overturn a state’s outcome. Here’s what he does.
What does the electoral roll reform law provide?
The best way to understand what the reforms do is to explore which institution or office involved in vote counting they would affect, one by one.
state legislatures: Trump’s team hoped in 2020 that GOP-controlled lawmakers would pass new laws awarding their states’ electoral votes to him, not Biden, and called GOP legislative leaders to the White House to try to pressure them to act. In fact, neither legislature interfered with his state results, but fears grew that they might next time.
Thus, ECRA emphasizes several times that states must appoint electors in accordance with state laws “enacted prior to Election Day” — no retroactive mischief allowed. States must set the rules of the game before elections and cannot change them afterwards.
Government officials: Trump pressured governors and other officials across the state not to certify results showing Biden winning or to overturn the result — most notably in Georgia, with Secretary of State Brad Raffensperger urging him to “find 11,780 votes” for him and his attacks on Gov. Brian Kemp (R) for certifying the result. Again, they didn’t act — this time.
ECRA specifies that the executive branch of each state (the governor) has a “duty” to certify the appointment of electors. But just in case an election-denying governor is up to some shenanigans, ECRA also says the federal courts have oversight of these certifications and creates a special fast-track process through which the courts can quickly hear appeals, which then they could be quickly appealed to the Supreme Court.
Vice president: The vice president oversees the Jan. 6 joint session of Congress that counts the electoral votes. That role had long been ceremonial, but Trump tried to pressure Vice President Mike Pence into a power grab and throw out the state results. Pence declined, but a future veep may well be more cynical or bigoted.
ECRA thus makes it unequivocally clear that the role of the vice president in the counting of electoral votes is “exclusively ministerial”. He or she “shall have no authority to determine, accept, reject or otherwise adjudicate or resolve disputes” over electoral votes, the bill states. That is, no vice president has the power to do what Trump wanted Pence to do.
Congress: When Congress convened to count the electoral votes on January 6, 2021, Trump’s allies tried to use the process of contesting the state results to delay the result. (If only one member of the House and one senator objected to a state result, the joint session of Congress must be dissolved and each chamber had to debate and vote on the objection.) This effort was largely abandoned after a mob stormed the Capitol Hill , but sufficiently motivated obstructionists could have delayed the results for many more hours — or even days — simply by raising unfounded objections.
There was also a hope from Trump’s team that if Pence refused to count enough state electoral votes, Biden’s electoral vote count would fall below the majority (270) needed to win and the election would fall to House of Representatives. to decide, voting by state delegations. (Republicans controlled more state delegations, even though Democrats held the majority of the House.) But Pence was strong, so that didn’t happen.
ECRA changes the congressional process in several ways.
Second, the only permissible grounds for objection are if the electors are not legally certified or if the elector’s vote is not regularly cast. And Congress must treat certifications by a state’s governor as final unless the courts say otherwise. This is at least an attempt to stop far-fetched objections being made as political statements, as Republicans did in 2020 and Democrats did in 2016 and 2004.
Third, if some electoral votes are not counted for any reason, the majority threshold for winning the presidency falls. To understand how this works, consider the 2020 result, where Biden won the electoral vote count 306 to 232. If Pence or Congress threw out the results in Georgia, Arizona, and Wisconsin, Biden’s total would he had fallen to 269 votes and an election may have been thrown in the House even though he was still leading. Under the new standard, Biden would still win in this scenario because he won a majority of the votes counted.
Will the Voter Number Reform Act Work?
The reforms here seem reasonable and well done overall. However, there is a line of thought that they may not actually achieve their goals. As Politico’s Kyle Cheney wrote in January, it’s not clear that the current Congress can actually bind a future Congress. That is, if a future Congress simply ignored these provisions, courts might not step in to enforce them. And there were already questions about whether parts of the Election Counting Act — the existing law that codified how Congress handles the Jan. 6 vote count — were unconstitutional.
Indeed, it’s probably true that if a future Congress controlled by one party wanted to flagrantly break the law and steal an election, and that party was in near-total unity on it, they might as well try and get away with it.
But what the reforms really do is provide a lot of cover for people in the party who may be reluctant about vote theft, but who face political pressure to do so. The ambiguities in existing law that Trump and his allies tried to exploit with self-serving legal interpretations have now been cleared up. So Republican lawmakers, governors, members of Congress and the vice president can now say to the future Trump, “Sorry, my hands are tied. I can’t do what you want. The law says so.”
This is extremely important, because as I wrote, the main reason Trump failed to steal the election in 2020 is because several Republican officials in those positions of power over the results opposed his effort, or at least refused to positively support it. However, if the GOP continues to move right and in a pro-Trump, democracy-skeptic direction, that outcome is not guaranteed. The system only works if enough people in power agree to let it work. So ECRA matters because it will likely help bolster the GOP’s “electorate” by setting rules and precedents that they may feel compelled to follow, despite pressure to do otherwise.