Submitted Statement for the Record Before the

Senate Committee on Rules & Administration
United States Senate

Hearing on

THE ELECTORAL COUNT ACT: THE NEED FOR REFORM

August 3, 2022

Chairwoman Klobuchar, Ranking Member Blunt and Members of the Subcommittee:

Thank you for holding a hearing on the Electoral Count Act of 1887 and the need for its reform. Our names are Jonathan Bydlak, Matthew Germer and Ryan Williamson, and we conduct research on election reform at the R Street Institute, a nonprofit, nonpartisan public policy organization dedicated to promoting free markets and limited, effective government across a variety of policy areas, including election reform. This is why the Electoral Count Act is of special interest to us.

The Electoral Count Act (ECA) has been in desperate need of reform since it was enacted in 1887. It was designed to resolve the crisis of the 1876 election, in which three states submitted multiple, competing slates of electors, and Congress had to decide which electoral votes to count.[1] Unfortunately, Congress provided “clarity” about this issue with just a single paragraph of language—800 words combined into a string of confusing, run-on sentences—now codified into 3 U.S.C. § 15.[2] This arcane statute largely stayed out of the public spotlight for over 130 years—until the 2020 election.[3]

Fortunately, there now appears to be bipartisan support for reforming the ECA.[4]

While it is undoubtedly positive news that lawmakers are seeking to work across the aisle to fix a source of vulnerability in our electoral process, it is important to not just fight the last war. Instead, the law should be reformed with the future in mind, weighing trade-offs and preempting future difficulties in counting and certifying the electoral vote.

The first, and most important, component of meaningful ECA reform is limiting the power of the vice president in the counting and certifying of electoral votes. Politically motivated interpretations of the ECA have led to the rise of fringe theories that the vice president has the power to undermine the electoral college vote by unilaterally rejecting slates of electors and accepting alternatives.[5] Therefore, any ECA reform legislation must clarify the power of the vice president by formally defining the vice president’s role in counting and certifying votes as purely ceremonial.

Additionally, ECA reform must also address when and how slates of electors may be rejected. Since the passage of the ECA, the certification of electoral slates has gone largely unchallenged, notwithstanding performative objections.[6] Even in 2020, despite the incumbent president pushing for key statehouses to submit alternate slates of electors, each state ultimately submitted just one formal slate.[7] However, such adherence to norms cannot be taken for granted. Partisan state actors cannot be permitted to defy the laws of their state because their preferred candidate did not win. Accordingly, ECA reform must provide clarity about how states certify, decertify and submit slates of electors.

Once the states have submitted their votes, Congress must have an effective and fair process for rejecting those votes when necessary. This is another area in which ECA reform legislation could provide more clarity. Currently, only one member from both the House of Representatives and the Senate are needed to object to certification, and it only takes a majority to affirm the objection. The combination of these thresholds for action is untenable. Lone attention-seeking members of Congress should not have the power to hold-up the certification of a legitimate election. Therefore, the threshold to lodge an objection must be raised.

However, the threshold to affirm an objection should remain at a simple majority. If an objection requires a supermajority, it would open the door for resentful partisans to make frivolous arguments against certification, knowing the vote will almost certainly fail. Therefore, it is important that this bill still only requires a simple majority of each chamber to affirm an objection.

Reforming the ECA will not fix every problem related to federal elections, but it is an important step that would provide stability throughout a process that otherwise can be fraught with partisan gamesmanship and sour grapes. Congress should act now, before the 2024 presidential election cycle begins.

Thank you for holding this hearing on this important topic. If we can be of any assistance to members of the Committee, please feel free to contact us or our colleagues at the R Street Institute.

Jonathan Bydlak, Policy Director

Matthew Germer, Resident Elections Fellow

Ryan Williamson, Resident Fellow

R Street Institute

(202) 525-5717

[email protected]

[1] Sheila Blackford, “Disputed Election of 1876,” Miller Center, last accessed Aug. 2, 2022. https://millercenter.org/the-presidency/educational-resources/disputed-election-1876.

[2] 3 U.S.C. § 1 (2018). https://www.law.cornell.edu/uscode/text/3/1.

[3] Michael S. Schmidt, “Trump Says Pence Can Overturn His Loss in Congress. That’s Not How It Works.,” New York Times, Jan. 5, 2021. https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election.html.

[4] Office of Senator Susan Collins, “Senators Introduce Reforms to the Electoral Count Act of 1887,” U.S. Senate, July 20, 2022. https://www.collins.senate.gov/newsroom/senators-introduce-reforms-to-the-electoral-count-act-of-1887.

[5] “Read: Trump lawyer’s memo on six-step plan for Pence to overturn the election,” CNN, Sep. 21, 2021. https://www.cnn.com/2021/09/21/politics/read-eastman-memo/index.html.

[6] “Democrats challenge Ohio electoral votes,” CNN, Jan. 6, 2005. https://www.cnn.com/2005/ALLPOLITICS/01/06/electoral.vote.1718.

[7] Kyle Cheney, “Trump calls on GOP state legislatures to overturn election results,” Politico, Nov. 21, 2020. https://www.politico.com/news/2020/11/21/trump-state-legislatures-overturn-election-results-439031; Jacob Fischler, “How the Trump fake elector scheme fizzled in four states,” Missouri Independent, June 23, 2022. https://missouriindependent.com/2022/06/23/how-the-trump-fake-elector-scheme-fizzled-in-four-states.