Revised Electoral Count Act hopes to head off another January 6

In Presidential elections, Americans don’t vote directly for a candidate, but instead vote for that candidate’s official slate of “electors” whose final votes are tallied to confirm the Electoral College winner.

This is the (typically routine) election certification process that was happening inside the U.S. Capitol on Jan. 6, 2021, when Donald Trump told thousands of supporters he gathered near the White House they needed to “fight like hell” and urged them to walk to the Capitol — knowing that many had weapons.

In the aftermath of the January 6 insurrection, Congress has finally passed a bipartisan bill updating the 1887 Electoral Count Act, making it harder to overturn any state’s democratically elected slate of electors. This was also being attempted inside the Capitol as the Electoral College vote was officially being certified.

President Biden signed these changes into law on Dec. 29, 2022. Before revisions to the Electoral Count Act were enacted, only one member of the U.S. House of Representatives and one member of the Senate were needed to challenge any state’s set of electors. The new law — sponsored by Sens. Joe Manchin (D-West Virginia) and Susan Collins (R-Maine) — increased the objection threshold to 20 percent of both the House and Senate and streamlined the legal process of submitting electors. It also clarifies that the vice president’s role is purely ceremonial.

Proponents of Electoral Count Act reforms had also hoped to increased criminal penalties for individuals who threaten or intimidate election officials, poll watchers, voters or candidates as well as those who steal or alter election records or tamper with voting systems.

“Updating the Electoral Count Act is a necessary first step towards repairing our democracy,” Kary Moss, Acting National Political Director of the ACLU, said in a statement.

In a Washington Post opinion piece, Laurence H. Tribe, constitutional law professor at Harvard Law School; Erwin Chemerinsky, dean of the University of California at Berkeley School of Law; and Dennis Aftergut, counsel at Lawyers Defending American Democracy; argued the reforms in the bill don’t go far enough, starting with the 20 percent threshold for challenging a state’s slate of electors. “Recall that 139 Republican House members, nearly one-third, objected to certifying Joe Biden’s election,” they wrote. “Twenty percent is not enough to avoid needless debate and should be increased to at least 33 percent.”

Andy Craig of the CATO Institute called the bill: “a happy medium: a bill that is broad in scope but simple and conservative in substance.” He added, “The status quo Electoral Count Act, as we saw in 2020, is a ticking time bomb and an invitation to a constitutional crisis. This announcement is a major step forward in fixing that problem.”