Electoral Count Reform Act

As we get closer to the November Election, a lot of Misinformation about the Electoral Count Reform Act (ECRA) is beginning to rear its head. This is the Statute that defines Congress’ Role when it Receives and Counts the Electoral Votes from the States on Jan. 6th, 2025. In Bipartisan fashion, Congress in 2022 updated the 19th century version of this Act to commit itself to a firm Legal Framework for the 2024 and future Presidential Elections.

Some of the Changes the ECRA made are easy to describe and have received significant coverage. The Act re-affirms in clear Terms, for example, that the Vice President’s Role is merely Ministerial. But other Provisions of the Act address more Complex Issues and have received less attention. Most importantly, the Act re-affirms and makes clear that the grounds on which Congress can Lawfully Reject a State’s Electoral Votes, an act that would be of monumental consequence, are extremely narrow. In particular, the Bipartisan Legislation made clear that Congress does Not have the Legal Power to Second Guess the Voting Process in a State and Reject Votes on that basis.

The Act specifies that there are only Two bases on which Congress can Lawfully abject. One is if the State’s Electoral Votes are Not “regularly given.” This term is a carryover from the 19th century version of the Act.

This Term has a specific meaning based on long-standing Historical understanding and practice. It has always referred only to Issues that might arise with the Electors themselves after the State has determined Who Won the Presidential Election in that State. Thus, if an Elector casts their Vote at the Wrong Time or Place, or in the Wrong Manner, or did Not Report their Votes to Congress according to Law, or if their Vote was Cast due to Duress or a Bribe, it would Not be Regularly given. This Provision also gives Congress the Power to Reject a Candidate who is Not qualified Constitutionally to Hold the Office.

These and related examples are what make an Elector’s Vote not “regularly given.” But this Provision does Not give Congress any Power to Second Guess the Voting process that led to those Electors being chosen, that is, that led One Candidate to Win that State’s Electoral Votes. Any Disputes over that Process are to be Addressed and Resolved in the State and Federal Courts, which have the Fact-Finding capacity, the Time, and the Adversarial processes that Congress in the Joint Session on Jan. 6th lacks.

The Second and Only other basis on which the Bipartisan Congress agreed it could Lawfully object is also extremely limited. Congress can Object if the Document a Governor sends in, Identifying the Electors, is Defective in some way. Again, this Provision does Not give Congress the Power to Second Guess the Voting process in a State. Indeed, Sen. Ted Cruz (R-TX) Voted against the Act precisely because it Shut Down Congress’ Power to do so.

The entire thrust of the ECRA is to emphasize that any Disputes over the Voting process are to be Resolved in the Courts, not in Congress. This simply reaffirms what has been True throughout American History. Since Congress enacted the First ECRA in 1877, it has never Rejected a State’s Electoral Votes when a State sends a Single Slate of Electors to Congress, doing so would of course Disenfranchise the Citizens of that State. Congress has only acted when a State sends Two competing Slates of Electors to Congress. In that case, Congress has No choice but to decide which Slate to accept.

But the ECRA also Shuts Down the Door on that Possibility. It establishes a clear Rule of Decision to ensure that Congress never receives more than One Valid Slate of Electors. The Only valid Slate is the One submitted by “the executive of the state,” which Congress binds itself to treating as the Final and “conclusive” determination of Who the State’s Electors are, and if a Court Intervenes and issues an Order, Congress binds itself to that too.

The ECRA is designed Nnot just to shut down potential Partisan Manipulations of the Process in Congress, but also in the States. Thus numerous Provisions make clear that States must determine the Winner pursuant to Laws enacted in Advance of the Election. Some fearful Commentators worry that a Partisan State Legislature, or any other State Actor, might try to Change the Outcome by Manipulating the Rules after the Election has been run. Doing so would be Unconstitutional, but the ECRA makes clear that it would also Violate Federal Law.

Some Commentators have started Recklessly stoking Fears or perhaps Clicks by asserting Congress can do whatever it wants with a State’s Electoral Votes. But Congress would be acting Illegally in doing so. It would be Violating the ECRA that Congress itself Enacted.

It would also require a Majority of both Houses to do so, including many in Congress who helped Draft the ECRA and Voted to Abide by its Terms. No matter which Party controls the House and Senate, the Margin is likely to be Small. It would take only a few Members in One Chamber who Voted for the Act to Defeat any Partisan attempt to Ignore it.

In advance of the Election, it is extremely important that the Public understand that Congress has No Legal Power to Reject a State’s Votes based on Congress Second Guessing a State’s Voting process. That is the Constitutional understanding of Congress’ Limited Role, and it is the understanding that Congress committed itself to Honor when it Passed the ECRA.

To be sure, Congress might, for Partisan reasons, decide to act Illegally. That possibility can never be Eliminated fully. And if Congress does so, it is Not clear whether Federal Courts would Intervene to Enforce the Law. That makes it all the more Important that the Public understand that Congress has Committed itself in the ECRA to accepting the Results of a State’s Voting process and any relevant Judicial Decisions.

Between Now and January 2025, building widespread Recognition that Congress has No Lawful Authority to Reject a State’s Votes based on Disagreeing with how a State has conducted the Election is One of many ways we can continue to Shore-Up the Integrity of the 2024 Election.










NYC Wins When Everyone Can Vote! Michael H. Drucker