Policy and Legal

Following the events of January 2021, the processes for counting electoral votes has received renewed attention—and some members of Congress are working together to fix it.

The background: The law that governs the counting of electoral votes following a presidential election, called the Electoral Count Act, was written in 1887.

• Over the course of more than a century, the law has remained the same, even as ambiguities have caused conflicts and upheavals—most notably after the 2020 election.
• In the past two years, a bipartisan group of U.S. senators, led by Sens. Joe Manchin (D-WV) and Susan Collins (R-ME), have come together to develop the Electoral Count Reform Act, which is intended to remove ambiguities around the counting of electoral votes.

The proposal: While the ECRA is still being drafted, a few key provisions have been discussed. For example:

• The ECRA would clarify that the vice president’s role in vote counting is ceremonial, and that he or she is not empowered to throw out or change any state’s electoral votes.
• The bill raises the threshold for members of Congress to object to a state’s slate of electoral votes.
• Certain versions of the bill contain provisions that would increase election security, including by increasing penalties against individuals who threaten election officials.
• The bill would make clear that state legislatures cannot override the popular vote in their states or throw a state’s electors to someone other than the candidate chosen by their voters.
• The bill would also clear up ambiguities about presidential transition funds, ensuring that these funds can be disbursed to both candidates in the event of a disputed election in order to prevent delays.

Where we are: The current proposal has 17 cosponsors and is bipartisan. It has been through a hearing in the Rules Committee in the Senate, and it seems likely that some form of the ECRA will be considered this fall.

Our take: “The National Association of Manufacturers supports a clear, secure democratic process that doesn’t confer any partisan advantage and reduces opportunities to exploit ambiguities in the law,” said NAM Chief Legal Officer Linda Kelly. “A stable democracy is good for manufacturers and good for the world. That’s something we can all agree upon.”