Congress must not miss the chance to reform the Electoral Count Act

It was Jan. 6, and a United States Senator and a member of the House of Representatives had just issued a formal challenge to the electoral votes from one state — halting congressional ratification of the presidential election results. It was nearly unprecedented, and turned a civilized ceremony into what one publication referred to as “a political and historical drama.”

This moment in time was not Jan. 6, 2021, as one might assume, but rather Jan. 6, 2005. I was the Senate Majority Leader, and Sen. Barbara Boxer (D-Calif) and Rep. Stephanie Tubbs Jones (D-Ohio) had just launched an objection to President George W. Bush’s reelection, claiming Ohio’s results were tainted. 

While this challenge was rightly voted down, and President Bush’s victory certified, it set an unfortunate precedent where each party has begun to exploit ambiguities in the 1887 Electoral Count Act. This 136-year-old law established the process by which Congress certifies presidential elections, and while effective for a century, vague language in its drafting has led to challenges that increasingly undermine public confidence in our elections.

Despite extreme partisanship in the Capitol today, this is an area where both sides of the aisle agree: The Electoral Count Act must be modernized and dangerous loopholes that threaten the organized transfer of power in our democracy must be addressed. 

Bipartisan legislation led by Sen. Susan Collins (R-Maine) and Sen. Joe Machin (D-W.Va.) has garnered significant support, and Congress has a prime opportunity to enact the Electoral Count Reform and Presidential Transition Improvement Act before the end of the year.

Why now? Come January, growing bipartisan momentum to reform the act could dissipate with a new Congress and a looming presidential election in 2024, when these issues could again come to a head.

Here’s what commonsense, bipartisan reform would look like:

1. Identifying a single, conclusive slate of electors from each state. The 2020 election raised questions as to whether state legislatures could independently choose their state’s presidential electors, overriding or disregarding the popular vote and the will of the people. While no states actually took this step, the fact that it was suggested by presidential legal advisors as a potential option to change election outcomes makes clear the language of 1887 needs to be reformed. The Electoral Count Reform Act would address this by clearly identifying the state official to submit the slate of electors, and it strikes an archaic provision that could be misused to override a state’s popular vote. It also provides for an expedited judicial review for challenges made by presidential candidates.

2. Raising the threshold for Congressional objections. As I experienced in 2005, our certification of presidential election results was derailed by just two members in a body of 535. The Collins-Manchin compromise raises the threshold to lodge an objection to electors to at least one-fifth of the members of both the House of Representatives and the Senate, thus reducing the likelihood of frivolous objections.

3. Clarifying the role of the vice president. Vice President Mike Pence was put in an impossible position when a misinterpretation of his constitutional role led some to believe that, when presiding over the joint congressional session of Jan. 6 to count votes, he could decide which votes to count and which to throw out. The Electoral Count Reform Act would make clear that the vice president “shall be limited to performing solely ministerial duties,” and deny that person the “power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”

Congress has important priorities to address following the midterm elections, but it must not let this opportunity for electoral reform fall through the cracks. Indeed, the stability and longevity of our democracy may depend on it.

Bill Frist, MD is a heart and lung transplant surgeon, a senior fellow at the Bipartisan Policy Center, and chairman of The Global Board of The Nature Conservancy. He represented Tennessee in the U.S. Senate for 12 years and served as Senate majority leader from 2003 to 2007.