Skip to content
Search

Latest Stories

Top Stories

Understanding the Electoral Count Reform Act

Mike Pence

Vice President Mike Pence led the certification of the Electoral College votes in the earlier morning hours of Jan. 7, 2021, after rioters stormed the Capitol.

Tom Williams/CQ-Roll Call, Inc via Getty Images

Johnson is the executive director of the Election Reformers Network, a national nonpartisan organization advancing common-sense reforms to protect elections from polarization. Nevins is co-publisher of The Fulcrum and co-founder and board chairman of the Bridge Alliance Education Fund.

All of us remember when Vice President Mike Pence declared Joe Biden the winner of the presidential election at the end of a violent day at the Capitol on Jan. 6, 2021. Those were trying times for our country as MAGA loyalists circulated baseless claims of fraud and Donald Trump pressured his vice president to prevent Biden’s win by not counting electoral votes from some states.


In response to these unprecedented threats, and in a rare act of bipartisanship, Congress passed the Electoral Count Reform Act in 2022, updating the Electoral Count Act of 1887. ECRA provides critical amendments to the existing law that eliminate much of the ambiguity that created the pretext for Trump’s attempted sabotage in 2020.

ECRA amended the powers of the key actors in the presidential election process.

State legislatures and slates of electors

  • ECRA prohibits legislatures from changing laws governing the selection of presidential electors after Election Day.
  • ECRA also repeals the “failed election” provision of the prior law, which could have allowed legislatures to reject the popular vote and appoint a slate of electors themselves if they thought the election was flawed.

Taken together these provisions make clear legislatures have no role in presidential elections once Election Day has come. This is important because legislatures reflect the interest of the majority party in that state, making them unlikely to be honest brokers in a disputed election. Before Election Day, legislatures decide how the state will select its electors (whether “winner take all” state-wide or by congressional district, for example), but they cannot intervene in any way after Election Day.

The vice president and the counting of the electoral votes

  • ECRA clarifies that the vice president may only hold “ministerial duties” in the electoral vote-counting process. The VP has “no power to solely determine, accept, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”

Most scholars argue that even under the prior law the vice president’s role was only ministerial and non-discretionary, but Trump and his lawyers found enough ambiguity to demand that Pence reject electoral votes and unilaterally change the outcome. That dangerous idea is now unambiguously off the table.

Congress and congressional objections to electoral votes

  • ECRA strictly limits the grounds on which members of Congress can object to electoral votes to narrow procedural problems that are very unlikely to occur, such as an electoral vote for a president who is under 35 (which is prohibited by the Constitution).
  • This means Congress cannot object to a state’s certified electoral votes because of how the presidential election was conducted in the state.
  • The law requires one-fifth of each chamber of Congress to support a valid objection to electoral votes in order for a vote to be held on that objection and requires a majority vote in both chambers to sustain such an objection.

Taking these provisions together provides for only a very narrow role for Congress, so narrow that Congress should not be said to “certify” the presidential election. They observe the count, and that’s all, except for the very unlikely case of electoral votes that are flawed on narrow technical grounds.

Courts and disputed elections

  • ECRA provides for a district court of three judges to hear cases brought by a candidate regarding the issuance of the certification of results in any state
  • ECRA states that if there is a final decision by a state or federal court that changes the election outcome in a state after that state has certified its results but before the meeting of the electors, then that result “supersedes” the previously certified results.

These elements of the law make clear that courts of law have the primary role in resolving a disputed presidential election. This is entirely appropriate, and consistent with international democratic norms. Courts are the institution best equipped to hear evidence and render judgment and are therefore most likely to resolve a disputed election fairly.

Taken together, all of these changes make major improvements to shore up the presidential election process against any further rogue challenges. The Electoral College structure and voting process did hold up in 2020 — with ECRA it has been significantly reinforced.

Read More

U.S. President Barack Obama speaking on the phone in the Oval Office.

U.S. President Barack Obama talks President Barack Obama talks with President Hamid Karzai of Afghanistan during a phone call from the Oval Office on November 2, 2009 in Washington, DC.

Getty Images, The White House

‘Obama, You're 15 Years Too Late!’

The mid-decade redistricting fight continues, while the word “hypocrisy” has become increasingly common in the media.

The origin of mid-decade redistricting dates back to the early history of the United States. However, its resurgence and legal acceptance primarily stem from the Texas redistricting effort in 2003, a controversial move by the Republican Party to redraw the state's congressional districts, and the 2006 U.S. Supreme Court decision in League of United Latin American Citizens v. Perry. This decision, which confirmed that mid-decade redistricting is not prohibited by federal law, was a significant turning point in the acceptance of this practice.

Keep ReadingShow less
Hand of a person casting a ballot at a polling station during voting.

Gerrymandering silences communities and distorts elections. Proportional representation offers a proven path to fairer maps and real democracy.

Getty Images, bizoo_n

Gerrymandering Today, Gerrymandering Tomorrow, Gerrymandering Forever

In 1963, Alabama Governor George Wallace declared, "Segregation now, segregation tomorrow, segregation forever." (Watch the video of his speech.) As a politically aware high school senior, I was shocked by the venom and anger in his voice—the open, defiant embrace of systematic disenfranchisement, so different from the quieter racism I knew growing up outside Boston.

Today, watching politicians openly rig elections, I feel that same disbelief—especially seeing Republican leaders embrace that same systematic approach: gerrymandering now, gerrymandering tomorrow, gerrymandering forever.

Keep ReadingShow less
An oversized ballot box surrounded by people.

Young people worldwide form new parties to reshape politics—yet America’s two-party system blocks them.

Getty Images, J Studios

No Country for Young Politicians—and How To Fix That

In democracies around the world, young people have started new political parties whenever the establishment has sidelined their views or excluded them from policymaking. These parties have sometimes reinvigorated political competition, compelled established parties to take previously neglected issues seriously, or encouraged incumbent leaders to find better ways to include and reach out to young voters.

In Europe, a trio in their twenties started Volt in 2017 as a pan-European response to Brexit, and the party has managed to win seats in the European Parliament and in some national legislatures. In Germany, young people concerned about climate change created Klimaliste, a party committed to limiting global warming to 1.5 degrees Celsius, as per the Paris Agreement. Although the party hasn’t won seats at the federal level, they have managed to win some municipal elections. In Chile, leaders of the 2011 student protests, who then won seats as independent candidates, created political parties like Revolución Democrática and Convergencia Social to institutionalize their movements. In 2022, one of these former student leaders, Gabriel Boric, became the president of Chile at 36 years old.

Keep ReadingShow less
How To Fix Gerrymandering: A Fair-Share Rule for Congressional Redistricting

Demonstrators gather outside of The United States Supreme Court during an oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on October 3, 2017 in Washington, DC

Getty Images, Olivier Douliery

How To Fix Gerrymandering: A Fair-Share Rule for Congressional Redistricting

The natural progress of things is for liberty to yield, and government to gain ground. ~ Thomas Jefferson, Letter to Col. Edward Carrington, Paris, 27 May 1788

The Problem We Face

The U.S. House of Representatives was designed as the chamber of Congress most directly tethered to the people. Article I of the Constitution mandates that seats be apportioned among the states according to population and that members face election every two years—design features meant to keep representatives responsive to shifting public sentiment. Unlike the Senate, which prioritizes state sovereignty and representation, the House translates raw population counts into political voice: each House district is to contain roughly the same number of residents, ensuring that every citizen’s vote carries comparable weight. In principle, then, the House serves as the nation’s demographic mirror, channeling the diverse preferences of the electorate into lawmaking and acting as a safeguard against unresponsive or oligarchic governance.

Nationally, the mismatch between the overall popular vote and the partisan split in House seats is small, with less than a 1% tilt. But state-level results tell a different story. Take Connecticut: Democrats hold all five seats despite Republicans winning over 40% of the statewide vote. In Oklahoma, the inverse occurs—Republicans control every seat even though Democrats consistently earn around 40% of the vote.

Keep ReadingShow less