The urgent need to update the Electoral Count Act

“I was slipping in people’s blood.” That was the testimony of Capitol Police Officer Caroline Edwards, who defended the U.S. Capitol against a harrowing attack on our country on Jan. 6, 2021. In what she described as a “war scene,” Edwards sustained multiple injuries after being tear gassed, pepper sprayed and knocked unconscious. She endured this in defense of our democracy, on the day that Congress gathered to finalize the results of the 2020 presidential election.

Now, it’s time for members of Congress to do their part — to “support and defend” our system of constitutional democracy, as their oaths of office demand. The recent hearings on the Jan. 6 attack make clear that our nation faces a truly unprecedented and ongoing threat of election sabotage. The question is whether members of Congress are willing to act with the sense of urgency that this moment requires — whether they have truly taken to heart the words of retired Judge J. Michael Luttig, that “our democracy today is on a knife’s edge.”

Thankfully, a current effort in Congress is underway to update the Electoral Count Act (ECA) of 1887 — a confusing, antiquated law that provides the legal framework for how presidential votes are cast and confirmed. The vagaries of the 135-year-old law, which hasn’t been meaningfully updated since it was enacted, emboldened fringe members of then-President Trump’s circle to think that they could overturn the election on Jan. 6th. Just last month, Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.Va.), along with 14 cosponsors, introduced the Electoral Count Reform and Presidential Transition Improvement Act of 2022. The bipartisan bill would update the Electoral Count Act and bring it into the 21st century.

Addressing the issues with the ECA is the most practical way to help prevent a repeat of Jan. 6^th — and to help prevent a full-blown crisis in the next presidential election. Some key changes in the Senate’s bill include:

• Prohibiting state legislatures from overruling their own voters
• Resolving disputes about electors and electoral votes before they reach Congress
• Strictly limiting opportunities for members of Congress to second guess electors and electoral votes
• Clarifying the vice president’s ministerial role in the counting of electoral votes

The senators who came together to draft and introduce this important legislation should be recognized for their commitment to modernizing the ECA.

The big outstanding question now that the legislation has been introduced is whether the U.S. Senate and ultimately the U.S. House of Representatives will be able to move fast enough to get the bill across the finish line and prevent the next potential crisis.

Manchin has already acknowledged publicly — if the bill doesn’t pass both houses of Congress by the end of the year, “we’re in trouble.” And once the 2024 presidential campaign begins — likely in early 2023 — the legislative environment will be significantly less conducive to updating the ECA. 

It’s time for senators to acknowledge reality: The next presidential election could be one of the most contentious ever, and they must move on this bill as soon as possible. 

If political courage or motivation is needed, we should look to the example set by all of those who defended democracy on and after Jan. 6. The public servants who were willing to resign rather than taking action that would undermine democracy or the rule of law. The election officials and poll workers who stood strong in the face of intimidation and threats of violence. And the Capitol police officers — many of whom were injured, and several of whom lost their lives — protecting the very members of Congress who must now consider updates to the ECA.

The heroism and sacrifices of these individuals are a testament to what people can do when they understand the gravity of their work, and they commit themselves to it. It is the senators’ turn to commit themselves to their work — and to do it with both the thoroughness and speed that it requires to protect the will of the people.

Patrick Gaspard is president and CEO of the Center for American Progress. 

Trevor Potter is the president of the Campaign Legal Center and a Republican former chairman of the Federal Election Commission.