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The importance of the Electoral Count Act

The Electoral Count Act spells out Congress' role in certifying the results of a presidential election.
Virus Outbreak Washington
Posted at 11:25 AM, Jan 31, 2022
and last updated 2022-01-31 13:25:56-05

After Democrats failed to push through their wide-ranging election reform bill last month, attention turned to the Electoral Count Act.

That law, and the confusion around it, contributed to the Jan. 6 attack on the Capitol. 

So what does that law do, and what could a fix look like?

Republican Sen. Susan Collins is spearheading an effort to reform the Electoral Count Act.

The law spells out Congress' role in certifying the results of a presidential election. It designates Jan. 6 as the day for Congress to count electoral votes. 

Edward Foley is the director of the Election Law program at Ohio State University, and he admits the 130-year-old wording is hard to understand today.  

"If you spend time with it, you start to get a sense of what they wanted to accomplish. And the big point is whether or not any state sends one document of electoral votes, or more than one," said Foley.

After Americans vote to choose a president in November, electors meet to formally cast each state's electoral votes.

Those vote certificates are sent to Washington, D.C., and that's what Congress counts on Jan. 6.  

The Electoral Count Act is designed to tell Congress what to do if they receive two slates of electors from one state.  

"It's not Congress' job to re-count the popular vote. Congress only is supposed to receive and count the electoral votes. So, I think a well-written law would simply make clear that it's just off limits to Congress to object when there's just one submission from each state," said Foley.

The law is clear on what it takes to object to the results.

And that's one of the reforms Foley would like to see changed.

"It only takes a single senator and a single representative in Congress, so one from each chamber, to start the process in motion. And that's too low a threshold." 

Reform ideas include increasing that threshold to 25% of each chamber or making it clear that objections are only valid if Congress receives two sets of electors from one state.  

"When you had objections to the Biden votes, you know, whether you want Biden to win or not, it was absolutely clear that Arizona had sent electoral votes for Biden. They didn't send any votes for anybody else, and there really wasn't any basis for Congress to complain." 

Foley believes fixing the Electoral Count Act is something Congress must do, even if other election reforms fail.

"We saw what mischief looked like on Jan. 6, 2021. And we don't want anything like that again. And the mischief could be even worse next time, unfortunately, if we don't fix this."

This story was first reported by Stephanie Liebergen at Newsy.