How A 2022 Law Changed Election Certification: Assessing the Electoral Count Reform Act

This nonpartisan policy brief, written by an ACE fellow, is republished by The Fulcrum as part of our partnership with the Alliance for Civic Engagement and our NextGen initiative — elevating student voices, strengthening civic education, and helping readers better understand democracy and public policy.

Key Takeaways

• The Electoral Count Reform (ECRA) of 2022 modernizes the 1887 Electoral Count Act, which governed how Congress counts Electoral College votes. The original Act has been widely criticized as vague and susceptible to exploitation.
• The ECRA clarifies that the Vice President’s role is ceremonial, raises the objection threshold to 20 percent of both chambers, and designates governors as responsible for submitting elector certificates.
• Supporters argue that the bipartisan reform prevents future election disputes and protects democratic stability, while critics contend that it was rushed, doesn’t address deeper election integrity issues, and raises concerns about federalism.
• The Act reflects bipartisan cooperation but continues debates about federalism and the balance of power between states and Congress.

The Electoral Count Reform and Presidential Transition Improvement Act (ECRA) was introduced by Senator Susan Collins (R-ME) in July 2022 and signed into law by President Joe Biden in December 2022. It is a reform to the Electoral Count Act of 1887 (ECA), a law that governs how Congress counts the Electoral College votes for president every four years. The Act is also a response to President Donald Trump’s efforts to dispute the 2020 presidential election results, which revealed several gaps in the law that could be exploited by a presidential candidate.

The Electoral Count Act of 1887: Origins and Purpose

The original ECA was passed by Congress in response to the disputed 1876 election between former President Rutherford B. Hayes and Samuel J. Tilden, which involved allegations of fraud, violence, disenfranchisement, and competing slates of electors from four states. The Constitution offered no clear guidance for resolving competing electoral slates, leading to the Compromise of 1877, which awarded the presidency to Hayes. Congress recognized the need for clarity and passed the ECA in 1887, following close elections and failed reform efforts.

The original ECA has several proponents:

1. Sets the Electoral College voting date to the first Monday after the second Wednesday in December,
2. Establishes a “safe harbor” deadline, which means if states finalize results six days before the Electoral College vote, Congress must treat those results as conclusive,
3. Provides a process for Congress to resolve competing slates of electors if a state submits more than one,
4. Outlines procedures for Congress to count electoral votes on January 6, including an objection process,
5. And a single senator and a single representative can jointly object in writing, triggering debate and votes in both chambers.

Weakness in the Original Law

The ECA has long been criticized for being vague and confusing, especially its rules governing the handling of competing slates. Scholars have called the law “confused,” “almost unintelligible,” “repetitious,” and “contradictory.” Challenges to the 2020 election results renewed scrutiny and criticism of the ECA’s weaknesses.

After the 2020 election, disputes over the results brought to light ambiguities in the ECA, including legal arguments that the results could be challenged through the electoral process. Lack of clarity about the VP’s role in the count of electoral college votes sparked legal and political debates over whether the VP had authority to reject or delay the certification of electoral votes from contested states. On January 6, 2021, as Congress convened to count electoral votes, objections were raised to several states’ results under the ECA’s objection procedure. The session was disrupted by the Capitol attack, and Congress reconvened later that evening to complete the count.

Key Provisions of The Electoral Count Reform Act

The Electoral Count Reform Act reforms the ECA in several key ways

1. Mandates that rules for selecting electors in each state be made prior to Election Day,
2. Clarifies that the vice president’s role in overseeing the counting of the electoral votes is only ceremonial,
3. Raises the threshold for objections to a state’s electoral votes from just a single member of the House and Senate to 20% of both chambers, and
4. Designates the governor as the sole state official (unless otherwise specified by state laws) responsible for submitting a certificate of electors in order to make it harder for a defeated presidential candidate to submit false electoral slates.

Arguments in Support of Reform

Supporters argue that the Electoral Count Reform Act (ECRA) clarifies and updates the 1887 Electoral Count Act, a statute long criticized as complex and open to differing interpretations—particularly following disputes after the 2020 election. The reform specifies that the Vice President’s role in counting electoral votes is ministerial, meaning the office lacks unilateral authority to reject or select electors. It also raises the threshold for congressional objections to electoral votes from one member of each chamber to 20 percent of the members of both the House and the Senate, intended to limit objections that lack broader support.

The law requires states to establish rules for appointing electors prior to Election Day and restricts changes to those rules after the election. It identifies governors as the primary officials responsible for submitting electoral certificates, unless state law provides otherwise, to reduce the likelihood of competing slates of electors. The ECRA also creates expedited judicial review procedures to address disputes before the Electoral College meets. Its bipartisan passage has been cited by some as an effort to strengthen procedural clarity and reduce uncertainty in future presidential election certifications.

Arguments Against Reform

Critics contend that the ECRA was rushed through, with insufficient debate over legislation that significantly affects presidential elections. Some conservatives argue the reforms either do not go far enough to prevent election disputes or improperly shift authority between states and the federal government, raising broader concerns about federalism and state control over elections. Because elections are administered at the state level, implementing new federal standards may create logistical and legal challenges as states update their laws.

Others note that while the ECRA addresses weaknesses in the electoral vote-counting process, it does not resolve other systemic election concerns, such as gerrymandering, voter suppression claims, or broader vulnerabilities in election administration. As a result, some argue that the law improves procedural clarity but leaves unresolved deeper structural debates about election integrity and democratic legitimacy.

Implications for Election Law and Federalism

Overall, the Electoral Count Reform and Presidential Transition Improvement Act of 2022 reflects a bipartisan attempt to clarify long-standing ambiguities in the electoral process, while also raising ongoing debates about federalism, the balance of power between the states and Congress, and whether the reforms go far enough to safeguard democratic legitimacy.

Frequently Asked Questions:

1. Why was the Electoral Count Reform Act (ECRA) passed?
   The ECRA was enacted in 2022 to update and clarify the 1887 Electoral Count Act, which had long been criticized as vague. Disputes following the 2020 presidential election highlighted ambiguities in the law, particularly regarding the Vice President’s role and the congressional objection process.
2. What are the most significant changes the ECRA makes?
   The Act clarifies that the Vice President’s role in counting electoral votes is ceremonial, raises the threshold for congressional objections to 20 percent of members in both chambers, requires states to set elector-selection rules before Election Day, and designates governors as the primary officials responsible for submitting electoral certificates (unless state law provides otherwise).
3. How does the ECRA address disputes over electoral votes?
   The law aims to reduce uncertainty by limiting objections lacking broader congressional support, discouraging competing slates of electors, and establishing expedited judicial review procedures to enable courts to resolve disputes before the Electoral College meets.
4. Does the ECRA resolve broader election system concerns?
   No. The ECRA focuses specifically on clarifying the Electoral College vote-counting and certification process. It does not address other election-related issues such as voting access, redistricting, or campaign administration, which remain subjects of ongoing debate.