Celebrating ECA Reform on the Anniversary of Jan. 6th

Topline: Unite America celebrates the final passage of the Electoral Count Reform Act (ECRA), legislation updating the Electoral Count Act (ECA), which was included in this year’s omnibus appropriations bill. This is the culmination of a nearly two-year bipartisan effort to ensure the peaceful transfer of power following future presidential elections.

The two-year mark of the insurrection in the U.S. Capitol on January 6, 2021, reminds all Americans that our form of government cannot be taken for granted. In the wake of the riot, it became apparent to lawmakers that election reforms were needed to prevent a repeat of the events that led to this day. A bipartisan group in Congress achieved a major one: drafting and subsequently passing the Electoral Count Reform Act (ECRA) at the end of 2022.

The ECRA is a crucial victory to ensure future presidential elections are certified in accordance with how Americans cast their votes in each state and jurisdiction. It clarifies a 19th-century law (the original Electoral Count Act of 1887, an archaic law that provided the primary legal framework for casting and counting Electoral College votes in presidential elections) that set rules for the submission and counting of electoral votes — the ambiguity of which led to wild theories about various officials’ roles, including that of the vice president, which bad actors exploited in the lead-up to January 6th. 

The History of the Electoral Count Act

For generations, the process of Congress counting the Electoral College votes for president and vice president has been straightforward, writes the Campaign Legal Center: Americans cast their votes for president and vice president, and they do so indirectly by voting for their state’s slate of electors. Subsequently, electors in each state meet following Election Day to cast their votes in the Electoral College, and those votes are sent to Congress, at which time our elected representatives count them to confirm the winner.

Since the ECA was enacted more than 130 years ago, it has served its purpose of establishing a set timeline for selecting electors and transmitting their votes to Congress, procedures for how Congress counts the electoral votes, and the role of the vice president. However, the archaic law was rife with imprecise language, gaps, and glaring ambiguities, which resulted in an organized effort to overturn the 2020 election. It was not until the events of January 6, 2021, transpired that Congress decided to make improvements to the ECA to prevent such events from happening again during future — and likely just as contentious — presidential elections. 

What the Electoral Count Reform Act (ECRA) of 2022 establishes 

As our partners at Issue One write, the law will “insulate the country from a full-blown constitutional crisis following future presidential elections.” It does the following: 

• Ensures that only one single slate of electors can be submitted to Congress and confirms that that slate must reflect the results of the presidential election in that state.
• Prohibits state legislatures from changing the law after Election Day to overrule their voters and the results of the popular election.
• Provides for expedited judicial review when there is a dispute involving more than one slate of electors, preventing state legislatures and other actors from submitting false election certificates to Congress.
• Clarifies the vice president’s role in the counting of electoral votes, affirming that the role of the vice president on January 6th is strictly ministerial.
• Raises the threshold to object to a state’s electoral count at the joint session of Congress to 20% of each chamber.

A bipartisan collaboration led to the passing of the ECRA 

The passing of the ECRA demonstrates that democracy reforms in Congress are best achieved on a bipartisan basis. Achieving bipartisan reforms is a matter of principle and strategy. As a principle, one party changing the rules of democracy on the other will only further fester divisions and a lack of commitment to democratic norms. As a strategy, bipartisan legislation is the surest way to pass policies with staying power in Washington. 

We saw the success of bipartisan collaboration play out earlier this year, thanks to two groups of lawmakers in both the House and Senate, who worked together to reform the ECA before the 117th Congress came to a close. A Senate coalition of Democrats and Republicans introduced the ECRA, while members of the House of Representatives introduced the Presidential Election Reform Act (PERA) in a parallel effort. After nearly two years of work on these pieces of legislation, on Dec. 23, 2022, the U.S. House of Representatives followed the U.S. Senate in passing the ECRA as part of the 2023 Consolidated Appropriations Act, an end-of-the-year omnibus bill containing both government funding and legislative changes across the policy spectrum. 

In light of this victory, we commend our partners for their tireless efforts to help get the ECRA passed — including Campaign Legal Center, IssueOne, Protect Democracy, Humanity Forward, and Kevin Kosar of the American Enterprise Institute — who played critical roles in policy design and advocacy.

In closing, while the passing of the ECRA is certainly worth celebrating, it is clear that there is still much more to be done to protect Americans’ freedom to vote, and as we’ve said before, the work to come must be bipartisan.