Days before the end of the 117th Congress, an omnibus appropriations bill was signed by President Joe Biden. Included in that 4,000-page spending law was the Electoral Count Reform and Presidential Transition Improvement Act of 2022, or ECRA. Hammered out by lawmakers including Sens. Joe Manchin (D-W.Va.) and Susan Collins (R-Maine), this bipartisan legislation is intended to provide better guardrails to govern how presidential election results get from the states to the Electoral College process and then to Congress, and how Congress handles them once there.
According to many, the Electoral Count Act of 1887 was overdue for an overhaul because it did not offer clear guidance on counting electoral votes or how to resolve possible disputes. (History buffs will note that in 1887 Congress created the ECA specifically to preclude problems such as those that arose in the 1876 presidential election of Rutherford B. Hayes from happening again.)
While legal scholars and politicos have been sounding the alarm for decades that the ECA’s antiquated language was imprecise on the vice president’s role, among other things, most Americans didn’t think twice about the mechanics of selecting a president until 2020. That’s when the nation learned the ECA was open to interpretation, and efforts to clarify its meaning gained steam.
The new law mainly addresses what Congress does after electors are sent forward from the states. It creates a new threshold for members to object to a slate of electors (one-fifth of the members of both the House and the Senate), identifies the role of the vice president as “solely ministerial” and clarifies that Congress must defer to the slates as determined by the states.
It also addresses the states’ side of the equation. It codifies that the executive of each state sends forward the state’s slate of electors. The law indicates that, in this context, “the executive” is usually a governor. But if state law in effect prior to the election explicitly identifies another officer, such as the secretary of state, that works as well—the law simply requires certainty before the election.
Additionally, it requires some kind of “security feature” on the certificate of ascertainment (the official document identifying a state’s appointed electors), again as determined by the state before the election. The goal is to be sure that the right slate—and only that slate—is transmitted. The law also clarifies that electors shall be appointed “in accordance with the laws of the State enacted prior to election day.” A state can’t change the rules after the voting ends.
Given all that, the ECA means 2023 is a fine time for legislators to review their state’s laws relating to presidential electors. Derek Muller, law professor at the University of Iowa, provides what he thinks state legislatures “should” examine. Here are areas states could review, in light of the passage of the ECRA:
- What officer—the governor or someone else—is responsible for sending forward the slate of electors? Is this choice crystal clear?
- What security feature is in place, or could be adopted, for slates of electors? Will the state seal do the trick?
- How do political parties select their candidates for the position of presidential elector, and is the process the same for both major parties? A selection committee that is part of the state party’s governance could suffice, or candidate-electors could be selected by a vote at a party convention. There may be other options as well.
- What might disqualify an elector? Put another way, what are the qualifications to be an elector? Surely, they must be registered voters in the state. But can they hold political office, or office in a political party, as well?
- Once selected, can electors vote for whom they please when they cast electoral votes, or must they vote for the candidate for whom they were elected? Some states permit faithless electors, and others don’t.
- Are electors’ names printed on ballots, along with the names of presidential and vice presidential candidates? Listing all the names uses up precious space on ballots, and very few people care about the names.
- Does the election certification date allow enough time to dot i’s and cross t’s? While the ECRA requires the state executive to issue a certificate of ascertainment at least six days before the Electoral College meets, it says nothing about when states’ election results must be certified. Certification dates vary widely, from just a few days to a few weeks. A very few states—those with late certification for most races—have an earlier date for certifying presidential electors.
- Is it time to review state laws relating to election emergencies? The ECRA notes that “extraordinary and catastrophic” events could force a modified period of voting. (The law relates to presidential voting only, but states could think about emergencies more broadly.)
- Are your state laws fine as is? In many cases, they will be.
While states are considering procedural questions, they could consider big policy questions, too, such as how to award electoral votes. The winner-take-all method is far the most common: Whoever wins the popular vote in the state gets all the electors. (That’s one for each representative and senator in the state, so no state has less than three electors.) Nebraska and Maine allocate their electors based on congressional districts, not the statewide popular vote. In those two states, two electors go to the candidate winning statewide, and the remainder are allocated to the winner within each congressional district. Ask any Mainer or Nebraskan; they’ll tell you it can make a difference.
And then there’s the National Popular Vote Interstate Compact. Member-states have vowed to send their electors based not on any votes counted in their own state, but rather on the nationwide popular vote. The compact only goes into effect when enough states have signed on to get to 270 electoral votes. So far, 15 states and the District of Columbia, representing a total of 195 votes, have signed on through legislation—although any state could sign off at any time.
To be clear, the ECRA in no way changed the Electoral College. Still, some folks would be glad to see it disappear. In early 2020, NCSL asked two experts, one who would prefer to do away with the process, and the other who sees it as an essential legacy of the founders’ vision, to write up their positions. It’s still relevant reading: Debating the Electoral College.
Wendy Underhill directs NCSL’s Elections and Redistricting Program; Walter Olson of the Cato Institute contributed to this report.