D21 Urges Senate To Make Important Changes To Electoral Count Reform Act To Ensure It Can Effectively Prevent Future Efforts To Steal The Presidency

The Electoral Count Reform Act of 2022 (ECRA), which would reform two antiquated 19th-century laws that govern the presidential election process, “is important and necessary reform,” but there are important changes that must be made in the legislation to ensure it “effectively accomplishes its goals in preventing future efforts to steal the presidency,” according to Democracy 21 President Fred Wertheimer in written testimony submitted to the Senate Rules Committee.

The Senate Rules Committee will hold a hearing on Electoral Count Act reform on Wednesday. The ECRA was introduced last month by Senators Susan Collins (R-ME) and Joe Manchin (D-WV) and represents the work of a bipartisan group of Senators.

Read the full Democracy 21 testimony online.

The flaws in the two 19th-century laws – the Presidential Election Day Act of 1845 and the Electoral Count Act of 1887, into which the 1845 Act was incorporated – were brought into sharp focus by former President Donald Trump’s attempted coup to overturn the presidential election in 2020.

According to the Democracy 21 testimony:

“With his attempted coup and his Orwellian campaign about the election being stolen, Trump cracked open the door for another autocratic, losing candidate in the future to attempt to steal the presidency.

“That stark reality makes it essential that the ECRA is enacted free of loopholes that could be exploited in another attempt to steal the presidency. Given how close former President Trump came to overturning the 2020 election, there is no room for error in the reform legislation.”

However, the Democracy 21 testimony details key problems with the current ECRA legislation and proposes ways to solve these problems, including:

• Problem: Judicial Review Process

The judicial review process in the ECRA to check a governor’s improper certification of electors is unworkable.

The ECRA provides only six days to challenge a governor’s certification, which is not enough time for a legal challenge to be filed, briefed, argued, and decided by the three-judge court and then appealed, briefed, argued, and decided by the Supreme Court. “All of that cannot realistically happen in six days and thus the appeals process cannot serve its necessary purpose.”

Solution: “The time frame for judicial review must be expanded. One way of accomplishing this would be to move back the date of the Electoral College meeting until later in December, leaving more time for judicial challenges between a deadline date for certification by the governor and the date of the meeting of the Electoral College when the electors vote for President.”

Problem: Standard For Extending Election Day

The standard for extending Election Day in “extraordinary and catastrophic” circumstances is too broad and gives states too much unchecked discretion.

The ECRA provides that a state can extend Election Day if “necessitated by extraordinary and catastrophic events.” The standard is clearly intended to include events such as a terrorist attack or a weather-related or other natural disaster on, or near, Election Day.

But, Democracy 21 notes, “it also leaves room for the state legislature to pass legislation before an election that would empower a rogue governor or rogue state legislature to declare that claims of supposedly widespread voter fraud on or before Election Day constitutes an ‘extraordinary’ event. […] While it might seem farfetched to imagine a governor or state legislature claiming that ‘voter fraud’ is an ‘extraordinary and catastrophic’ event, the 2020 election and its aftermath showed the nation that there is no scheme too farfetched for a Trump or Trump-like nominee to undertake in attempting to steal a presidential election.”

Solution: This problem can be addressed by providing a better-tailored definition of the “extraordinary and catastrophic” circumstances the provision is properly meant to cover, such as by using the term “force majeure.” The reform should also explicitly prevent “voter fraud” from being considered an “extraordinary and catastrophic” event. The reform should also set a date certain by which any extended election must be concluded.

Problem: Standards For Congress To Apply

The bill needs clearly enumerated standards that limit the ability of Congress to override a “conclusive” certification of presidential electors by a governor or a court.

The ECRA allows Congress to reject a “conclusive” certification by a governor or a court and instead find that the electors from a state were not “lawfully certified” or that their votes were not “regularly given.”

“In other words,” according to the Democracy 21 testimony, “the ECRA appears to say that the certification given by a governor or by a court is ‘conclusive’ unless and until Congress finds it is not. The broad and ill-defined standards to allow Congress to override a ‘conclusive’ certification by a governor or a court […] are easily subject to abuse.”

Solution: Democracy 21 shares the view expressed by Andy Craig of the Cato Institute that the ECRA “should clearly enumerate the constitutionally valid reasons Congress might reject a vote,” and that these standards should be the only basis for Congress to override a “conclusive” state certification.

The Democracy 21 testimony also includes suggested solutions for other technical changes in the ECRA that should be considered.

“If these serious problems are not addressed and solved in the ECRA,” according to the Democracy 21 testimony, “Members of Congress must recognize that some future, rogue presidential candidate could use any such available loopholes to seek to overturn the loss of a presidential election. This could happen as early as the 2024 election.”

It is not enough, the testimony notes, “to eliminate the ability of rogue state legislatures to override the will of the voters expressed on Election Day, but then leave room for rogue governors or rogue Members of Congress to accomplish that same result. The ECRA must be revised in order that the final reform legislation passed by Congress ensures that all of the existing problems in the 19th-century laws are effectively resolved, but in a way that does not create new ones.”

The full written testimony submitted to the Senate Rules Committee by Democracy 21 is online here.

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