Legislative reforms should prevent a repeat of the 2020 election chaos

The US presidential election is upon us, so it is only natural that the events of January 6, 2021, are top of mind for many. On that day, protestors broke into the Capitol, delaying the certification of the 2020 presidential election. When Congress reconvened hours later, 147 members of the House and Senate objected to the counting of two states’ electors. While those objections failed, there was significant support for other objections that were ultimately based on unfounded claims of electoral fraud, or at least fraud on a scale that could have turned the election. It was a troubling precedent and was the first real test of our electoral system since 1876.?Many justifiably ask — could it happen again? ?

As we will discuss below, the answer is that it is extremely unlikely.

Before diving into why this is the case, a brief (and somewhat simplified) digression into the mechanics of presidential elections is in order.? ??

How elections are certified

The US does not have direct presidential elections. Voters in each state vote for electors who are nominated by their political party and pledged to a candidate.?In 48 states, the winner of the popular vote in that state receives all of its electors. The District of Columbia takes the same approach. (The outliers are Nebraska and Maine, which elect some electors based on the vote within each Congressional districts). So technically, the winning candidate’s slate of electors are elected, not the candidates themselves.

Each state certifies the slate of electors pledged to the winning candidate and sends the certification paperwork to Congress.?On the Tuesday after the second Wednesday of December (December 17 this year) the victorious slate of electors in each state meets and goes through the formality of voting. The results are submitted to Congress for the official tally on January 6.

While elections take place under the aegis of state law, federal law governs the process of certifying presidential electors, voting, and counting the electoral votes. During the 2020 election, the controlling federal law was the Electoral Count Act of 1877 (ECA).

Imprecisions in the ECA fueled 2020 election deniers

The ECA had not been significantly revised since the 1940s and was a product of the times. The dated language of the statute lacked the precision of modern legislation and used legal terminology of the 19th century. The 2020 election deniers tried to exploit the imprecisions in this law to keep Donald Trump in the White House.

Based on unfounded claims of electoral fraud, Trump electors in seven states sent an “alternative slate” of electors to Congress. These alternate slates of electors provided the predicate for congressional objections made on January 6. Ultimately, what doomed this scheme was Vice President Mike Pence’s (who, as President of the Senate, oversaw the counting of electoral college votes) refusal to cooperate, and Trump’s failure to pressure enough members of Congress to object to enough state elector slates to overturn the outcome of the election. Other Trump operatives pushed a scheme to get state legislatures to choose the electors. The plan was to use an archaic provision in the ECA to create a loophole. So…why couldn’t this happen again?

Significant revisions to the ECA were passed in 2021

The events of January 6 did not go unheeded in Congress. As a result of 2020, the ECA was significantly revised in 2021 by the Electoral Count Reform and Presidential Transition Improvement Act (ECRA). This legislation fixed some of the vulnerabilities that were highlighted in 2020.?

ECRA provided needed specificity and clarity in the law regarding the certification of electors, delivery of electoral votes to Congress, and the counting of votes of the electoral college. In doing so it closed the gaps that Trump supporters tried unsuccessfully to exploit. Below are some of the ECRA’s notable provisions directed toward the issues raised in 2020:

The role of the Vice President: ECRA clarifies that the Vice President’s role in the counting of electoral college votes is purely ministerial and that the Vice President has no power to reject electors. This had been the practice, and to his great credit Vice President Pence abided by this practice, but ECRA now makes it explicit.

Ascertainment of electors: ECRA specifies the “executive” (typically the Governor) of each state must deliver the certificate of ascertainment of the electors who will be voting for President, and that certificate will be conclusive. The certificate must contain a security feature. States can not change laws after election day regarding the appointment and ascertainment of electors.

State legislatures: Repeals a provision of the ECA that permitted state legislatures to choose electors when the electors do not meet as required by law.

Congressional objections: Changes the law regarding Congressional objections to state electoral slates. 20% of both the House and Senate must sign an objection (the old law permits a single member to do so in each chamber).?

Disputed elector slates: ECRA prevents states from enacting legislation after an election to establish who is the winner if, like in 2020, there are competing slates of electors.

ECRA is designed to prevent the delivery of competing electoral slates and to make it much more difficult to object to electors. It sets out definitive deadlines for delivery to Congress of certificates of ascertainment and the meeting of the electors, and it requires immediate delivery of the electoral votes to Congress and the Archivist of the United States. It clarifies that only one state official can deliver that state’s slate of electors. While some believe the 20% threshold for objections should be even higher, those familiar with the Senate realize that the 20% threshold will not be easily met. While some of the archaic verbiage of the 1877 ECA is retained, there is sufficient precedent regarding the meaning of these terms to allay concerns of mischief. The criminal prosecution of many of the alternate electors should go a long way toward discouraging a repeat of 2020.

Elections aren’t seamless, but new laws will help ensure a peaceful transfer of power

As mentioned earlier, the conduct of federal elections is subject to state election law.? Voter qualification and registration, timing, site and identification requirements for voting, absentee voting, ballot counts and contests are predominantly a matter of state law.?The fight over the 2020 election was fueled by suspicions regarding the increased deployment of mail-in voting and the use of emergency measures (not always authorized by legislation) in response to COVID. While no evidence of pervasive electoral fraud was produced, irregularities caused by the pandemic provided grist for conspiracy theories. Anytime that 150 million votes are cast in a nation the size of the United States, irregularities can happen. Already, in 2024 the carnage from Hurricanes Helene and Milton in the southeast will require states and localities to employ special measures to ensure that all voters have access to the ballot.?

Every year states enact thousands of laws regarding all aspects of elections.?Most of these are mundane and address specific local issues.?A review of all of these is unnecessary for our current purposes — if you live in California or New York or Oklahoma or Wyoming, the election results are pretty much a foregone conclusion regardless of election law details. Given the political polarization that has taken place in the US, there are only a handful of states where electoral law changes could matter — the seven “battleground” states (Arizona, Georgia, Michigan, North Carolina, Pennsylvania, Nevada and Wisconsin) that determine who will be elected president.??

Most of the changes that have been made since 2020 in these states fall into three buckets: technical fixes; changes to registration and voting requirements (including automatic registration and automatic mailing of ballots to every voter, as well as proof of citizenship requirements); and ballot security/chain of custody measures. Most battleground states have passed measures that have, or will, draw the ire of advocates on both sides. This is understandable since concerns about either expanding the franchise or maintaining control over ballots are both legitimate. While there has been some litigation over new laws, there does not appear to be any “game-changers” lurking to impact the result of the election.

This is not to say that election day will be seamless. With elections taking place in all 50 states and Washington, D.C. there will undoubtedly be problems that result in litigation (America’s favorite pastime). There is already litigation in Pennsylvania based on the 2020 election. The lawyer behind the suit admits that this litigation is intended to provide a template for lawsuits in other states. The Georgia State Board of Elections recently issued controversial rules that could slow the vote count and certification ?Both Democrats and conservative Republican groups have sued, and the rules have been blocked (pending appeal).?There were protests that turned riotous after the last two elections, so it stands to reason it could happen again. But ECRA implements a process and a strict timeline for the electoral college to do its work free of the political intrigue that we saw in 2020, and as a result, we are more than likely to see a peaceful transfer of power in 2024.

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The opinions referenced above are those of the author as of?October 18, 2024. These comments should not be construed as recommendations, but as an illustration of broader themes. Forward-looking statements are not guarantees of future results. They involve risks, uncertainties, and assumptions; there can be no assurance that actual results will not differ materially from expectations.?