About this series: NCSL hosted legislators and legislative staff in December 2023 to answer common questions surrounding election processes and options, with an eye toward bill drafting in 2024 and beyond. Experts delved into topics ranging from absentee and mail voting and the role of poll watchers to technology and maintaining clean voter rolls. State Legislatures News broke down the questions and answers to help inform lawmakers on the intricacies of elections. Check Elections Q&As for Lawmakers often for more information.
The Expert: Ben Williams, associate director, NCSL’s Elections and Redistricting Program
The 2020 presidential election brought with it a wave of contention not seen since the disputed race of 1876, when Rutherford B. Hayes’s narrow victory over Samuel Tilden led to the creation of the Electoral Count Act. Over a century later, Congress enacted the Electoral Count Reform Act of 2022, or ECRA, marking an update to the way electoral votes are managed and disputes are resolved.
The original law governed how electors were selected, how they voted, how those votes were distributed to Congress and how Congress certified the results. “And that law had not been updated in over 140 years,” Williams says.
Top Two Takeaways
- Updating an 1877 law, the Electoral Account Reform Act of 2022 replaces ambiguous provisions, including identifying a single, conclusive slate of electors.
- States have a say in identifying who sends their slate of electors forward—the governor or another officer.
The ECRA aims to eliminate the ambiguities and outdated language of its 1877 predecessor, and revise aspects of the electoral vote process, from casting and counting votes to the presidential transition. The bill states that “the choice of electors must occur in accordance with the laws of the state enacted prior to Election Day.”
One of the act’s key features, according to Williams, is its clarification of states’ processes for submitting their electors’ votes. “It identifies the official who will submit the slate of electors, sets the time for those electors to meet and certify results, and sets rules for the security seal on the certification,” he says. While the default is the state’s chief executive, typically the governor, states may designate a different official, such as the secretary of state.
Since the ECRA’s passage, at least nine states have enacted bills adjusting their electoral processes in compliance with the new federal law. These changes range from specifying the certifying official to adjusting timing requirements, all ensuring that state electors meet the dates mandated by the law.
Williams emphasizes the permanence of state electoral laws once the presidential voting commences.
“Whatever the procedures are when the voting for president begins in your state, is the law that will govern throughout the entire process,” Williams says. This places a clear deadline on states to finalize their electoral processes before the next presidential cycle.
Lesley Kennedy is NCSL’s director of publishing and digital content.