Congress Reformed the ECA, but is it Enough to Protect Against the Next Big Lie

With early voting underway and the election day just a week away, the stakes for the future of our country have never been higher. As we all know, democracy is not guaranteed and does not self-execute. We simply cannot take for granted that the American experiment will continue in perpetuity without properly nurturing it and protecting it.

Regardless of where they fall on the political spectrum, Americans across the country have shared their belief that this is the most consequential election of their lifetime. Historians, however, may point to the 1860 election that brought President Lincoln to power in a heavily divided nation just before the Civil War as one of even more consequence. The nation’s current partisan and societal divisions are very eerily similar to the environment that existed just before the Civil War and, if it remains unchecked, may also lead to significant upheaval and turmoil in the next chapter of our nation’s history.

In the immediate aftermath of the 1860 Presidential election, Confederate states seceded from the Union, ultimately leading to the brutal Civil War that lasted from 1861 until 1865. And while President Lincoln ultimately managed to keep the nation together, partisan and societal divisions including over election-related processes remained strong as the nation entered the Reconstruction Era after the Civil War ended. In 1876, for example, the United States faced a significant electoral crisis where in the days following the general election, irregularities emerged as Congress received conflicting electoral vote counts from four states: Oregon, South Carolina, Florida, and Louisiana. With 20 votes hanging in the balance, Rutherford Hayes and Samuel Tilden remained as viable candidates battling for the presidency.

After months of partisan debate, legislators compromised by creating an emergency 15-person Electoral Commission composed of Senators, Representatives, and Supreme Court justices to resolve the dispute. After an 8–7 vote, the commission awarded the votes to Hayes, resulting in a one-point victory (185–184) for the Republican candidate — only two days removed from his inauguration.

The 1876 Election emphasized the importance of creating a secure legal procedure to certify results and commence a stable transition of power. Against the initial wishes of both parties, neither Congress (majority-Democrat) nor the Acting Vice President — Republican Thomas Ferry — held any authority in the proceeding. Not until 1887, eleven years later, did Congress enact the Electoral Count Act (“ECA”), which clarified state procedures for certifying votes and declared a formal congressional count to occur on January 6. For nearly 135 years, this legal framework had remained in place without significant challenge — that is, until recent times.

In the 2020 presidential election, eight Republican senators and 139 Republican House members cited several vague clauses in the ECA to try and invalidate electoral votes in Arizona, Pennsylvania, and several swing states. As per the ECA, a majority in the House and Senate can reject an electoral vote if that elector’s appointment had not been “legally certified” or “regularly given.” These actions were all taken despite extensive judicial verdicts that dismissed claims of irregularities in voting machines and absentee ballots. The consequences of their acts and other such lies of purported fraud in the Presidential election, without an iota of any actual evidence, claiming that President Biden did not legitimately win the 2020 election, have been devastating (the collective efforts of these election deniers became known in the media as the “Big Lie”).

Using the Big Lie as a pretense, 28 states introduced 126 bills affecting absentee voting, instituting ID requirements, and changes to rules at polling stations that will collectively have the impact of suppressing the vote of minority communities. During the 2022 election cycle, in Texas, for example, the number of polling stations had fallen in inner-city locations — causing working-class people to travel longer distances and wait in longer lines. And in Georgia, volunteers were not able to provide water for those waiting in lines to cast a ballot. The timing of these vote suppression machinations across the many states could not have been worse. More Americans are losing faith in democracy and exhibiting greater distrust in the federal government — this sentiment was especially prevalent in the days following the January 6, 2021, insurrection.

Trump and many of his supporters have yet to concede that he lost the 2020 election; in fact, election denialism is on the rise: Election deniers make up almost one-third of Congress (172 members representing voters in 36 states, which includes 127 members who previously refused to certify the 2020 election results including prominent senators like Ted Cruz (TX) and Josh Hawley (MO)). There are now 180 election deniers running for Congress. In addition, 26 election deniers in 19 states currently hold statewide office with authority over election certification approval oversight for those specific states, and 14 election deniers are currently on the ballot in statewide races this November.

As such, at this critical juncture in U.S. history, what plays out during the election, just as importantly during the certification process, could very well alter the fate of our democracy and the future trajectory of our nation. It is incumbent upon serious legislators who care about country over party, and our democratic system built upon the Rule of Law to take action to restore confidence in our election process and prevent the further erosion of America’s democratic values and institutions. Thankfully, Congress did take some action in 2022 to help mitigate a repeat of some of the chaos that followed Donald Trump’s refusal to transfer power peacefully in 2021 — but it remains an open question as to whether what they have done is enough to protect against the next Big Lie potentially coming our way.

Led by Senators Joe Manchin (D-WV) and Susan Collins (R-ME), Congress passed the Electoral Count Reform and Presidential Transition Improvement Act (“ECRA”) on December 29, 2022. In summary, the ECRA improves upon various provisions of the ECA that were exploited by the 2020 election deniers specifically including, inter alia:

• Providing an expedited procedure for federal courts to specifically hear and resolve disputes so as to ensure that states send lawful certifications of election to Congress (to help prevent situations where rogue state Governors or other state election officials send fake electors that do not truly reflect the outcome of the election);
• Specifying that the Vice President’s role in the process of counting electoral votes sent by states is purely “ministerial” and that he/she has no substantive decision making authority in the process, including “no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”
• Raising the bar for making objections to a state’s electoral votes, thereby making it more difficult to bring frivolous objections during the electoral vote counting process of the certification phase in Congress.
• Eliminates the concept of “failed” elections and requires that states appoint electors on Election Day, and disallows state legislators to step in using “fraud” as a pretext to appoint electors themselves after Election Day.
• Provides additional clarity and timelines around the process by which states certify their election results to Congress and how a majority of electors will be calculated.

There have been some additional efforts in Congress to help protect election integrity, such as the Freedom to Vote Act of 2021, which, among other provisions, aimed to expand access to mail-in ballots as well as in-person voting options and make Election Day a federal holiday as well as the Enhanced Election Security and Protection Act which was introduced in 2022 which looks to double the penalties under federal law for people “who threaten or intimidate election officials, poll watchers, voters, or candidates,” make clear that electronic election records must be preserved and also add postal service guidance to improve the processes for mail-in ballots. However, neither of these two bills gained the necessary bi-partisan support and have yet to be passed into law.

In closing — we will know very soon if some of the preliminary protections that Congress put in via the ECRA worked, especially if the losing candidate refuses to concede defeat. And hopefully if we get through these next few tumultuous months and survive without too much irreparable damage to our democracy — Congress must continue to work on passing additional legislative protections to secure our elections against future arbitrary and capricious attacks. If past trends are any indication, things will only continue to get worse in terms of more polarization, more threats of election violence, and more disinformation about the integrity of our election process. As such, additional reinforcements will be needed on a sustained basis to maintain the proper balance of power between local, state, and national election authorities to help protect our American democracy and one of our most cherished democratic traditions — a peaceful transition of Presidential power.