Though it may not have received the attention it merits, the Electoral Count Reform Act of 2022 is now law and Sen. Susan Collins deserves enormous credit for its passage.
The new law clarifies a 135-year-old obscure and antiquated law called the Electoral Count Act, which was itself intended to bring order to the counting of presidential electors but was so loosely written, it virtually cried out for reform and modernization. The shameful events of Jan. 6, 2021, made it all the more urgent that Congress address the need for clarity before the next election to ensure the peaceful transfer.
Under Sen. Collins’ stewardship, the Electoral Count Reform Act attracted 38 co-sponsors representing both parties. It will prevent bad actors from making dubious or outright bogus legal arguments to cast doubt over the outcome of future elections. It restores trust in our democratic process.
So, what does it do?
The Electoral Count Reform Act has four main provisions.
• First, it establishes procedures to ensure each state submits a single, conclusive slate of electors. The new law identifies the official in each state who is responsible for submitting its slate, usually the governor unless otherwise assigned in each state’s constitution or statutes. It also streamlines the process for obtaining judicial review by creating a three-judge panel with a direct appeal to the Supreme Court to review claims related to a state’s certification of electors. This legal pathway is available only to presidential candidates, not third-party mischief makers. Finally, it requires Congress to abide by the slate of electors submitted by each state’s designated official.
• Second, it clarifies the role of the vice president in counting electors. Vice President Mike Pence understood his role the same way every previous vice president viewed their roles: strictly ceremonial. Many of those who contested the 2020 election invented a novel understanding – one that granted the sitting vice president non-existent powers to reject electors and thereby choose the next president of the United States. The Electoral Count Reform Act makes plain that the vice president’s job is ministerial in nature and that they have no authority to accept or reject electors.
• Third, it raises the bar for objecting to state electors. To reduce the likelihood of frivolous objections to slates of electors, the new law requires at least one-fifth of the sworn members of both chambers of Congress to object to an elector or slate.
• And finally, it protects the popular vote by clarifying existing law. The new law eliminates a provision from an even older law dating back to 1845 that could be used as a pretext for state legislatures to toss out the results of a state’s popular vote by vaguely declaring it a “failed election.” The new law raises that standard and permits a state legislature to move an election due only to “extraordinary and catastrophic” events.
Some critics of the new law believe it doesn’t go far enough. Many of these critics want to eliminate the Electoral College altogether. Such a drastic measure would ignore the problems associated with 2020 election denialism and fundamentally alter our Constitution’s intent. Further, it would be deeply unfair to smaller states like Maine that deserve a unique voice in the selection of our nation’s presidents and aren’t mere rubber stamps of big states like California and New York.
Led by Maine’s own Sen. Collins, Congress crafted a balanced, bipartisan and rational approach to clarifying our nation’s election laws and constructed much-needed guardrails around counting presidential electors. We should all be happy that future election results will be shielded from the demagoguery of hucksters and charlatans.
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