The January 6th insurrection led to a positive and widely-hailed bipartisan legislative step in 2022, when the Electoral Count Reform Act of 2022 (ECRA) was passed to provide clear legal framework for casting and counting Electoral College votes in presidential elections. The ECRA was developed with strong bipartisan support and is designed to avoid a repeat of the chaos of the 2020 election, with charges of fraud, bogus last-minute electoral slates, and attempts by GOP state officials in some states to deny certification. The ECRA addresses fuzzy areas of the prior Electoral Count Act (ECA) of 1887. It lays out clear procedures for state legislators and the chain of authority roles for the federal court and Congress, too, in cases of state election ballot disputes. It also sets up a fast-tracked procedure for federal courts to resolve disputes about a state’s appointment of electors before the electors vote.

The November election will be a test case of the ECRA’s ability to provide clarity in what promises to be  a highly-contested contest. Legal scholars note that there are novel Constitutional issues that could arise, but hope the ECRA will assuage voter concerns and provide transparency to produce free and fair elections and a counting of the vote.

Among the ECRA’s updates: 

State Roles:

• It establishes a timeline for appointing electors:  the executive of the state must certify appointment of electors to Congress six days before the electors meet, pursuant to a state law enacted before Election Day. 

• The state executive is the governor, unless state law enacted prior to the election designates a different executive to perform the duty. 

• (If the governor does not currently certify a state's appointment of electors, the state may wish to consider updating its law to make clear who the executive is for purposes of certification of the state's appointment of electors.

• It sets up procedures to resolve disputes about electors and election certifications in the courts before those disputes reach Congress.

• The certification deadline for electors is December 11, 2024.

• It prohibits state legislatures from changing the law after Election Day.

• The only permissible modification of an election date would be for a state, “as necessitated by force majeure events that are extraordinary and catastrophic,” to extend voting beyond election day as provided for under pre-existing state law. 

• Force majeure could be a major natural disaster, for example.

• Electors must meet in their respective states “the first Tuesday after the second Wednesday in December” (December 17, 2024) — one day later than in the past—to officially cast their votes.

Federal Court Role:

• The new ECRA defines a role for federal courts to resolve disputes about states’ appointment of electors: presidential candidates can now bring a claim in federal court that will be heard by a three-judge panel of two circuit judges and one district judge. 

Supreme Court Role: 

• The ECRA allows for direct appeal to the Supreme Court via petition for writ of certiorari. If the Supreme Court decides to hear the case, it must do so on an expedited basis to resolve any claims before the electors meet. The ECRA specifies that a ‘certificate of ascertainment’ issued as the result of a court order is binding on Congress when it counts electoral votes.

Congress and Vice-President Roles:

• It limits opportunities for Congressional members to second-guess states’ certified results.

• It clarifies the vice-president’s ministerial role in counting electoral votes, but reinforces that the vice-president does not decide election results.

• It raises the threshold for congressional objections to one-fifth of each chamber:

• A majority vote by both chambers is required to sustain an objection and if the two chambers disagree with each other, the objection is not sustained. 

— ACD