In less than two months, voters in Ohio and around the country head to the polls. If everything goes smoothly — and there’s no guarantee it will — we might know who won the races for president, Congress and more later that evening. What happens next is where we ran into trouble in 2020, and it’s what a 2022 law known as The Electoral Count Reform Act aims to clarify.
Following the 2020 election, former President Donald Trump refused to accept his defeat. He filed scores of lawsuits that went nowhere, and badgered state officials in Georgia to find him votes. Ambiguities in prior law gave Trump allies just enough to room to believe they could overturn the election at the certification ceremony on January 6.
The Electoral Count Reform Act establishes concrete deadlines for state level certification between the election and the joint session in Congress. It also raises the threshold for challenging electors and clarifies that the vice president’s role as presiding officer is a purely ministerial one — the vice president can not unilaterally reject electoral votes and certification.
Summing it up, Holly Idelson from Protect Democracy said, “I think the ECRA bumper sticker could have been make January boring again.”
The timeline in Ohio and under the ECRA
Election Day this year is Nov. 5, but Ohioans who want to vote early or absentee can begin doing so Oct. 8. Absentee ballots for overseas voters have already gone out. Voters who choose to cast a ballot absentee will need to get it postmarked by Nov. 4 at the latest, and the postal service must deliver it by Nov. 9 to count.
Following Election Day comes the canvass where local election officials make their final tally with party representatives and supporters or opponents of ballot issues looking on. Under Ohio law, that can’t begin until five days after the election (Nov. 10) but must begin within 15 days (Nov. 20). County boards must have their official canvass completed by Nov. 26.
Following the canvass, Ohio officials issue what’s known as a certificate of ascertainment. It’s essentially a document laying out the official vote totals and slates of electors for each presidential candidate. It’s signed by the governor and the secretary of state and submitted to the national archivist.
Under the ECRA, that certificate must be issued by Dec. 11, and any litigation stemming from a dispute must be wrapped up by Dec. 16. In each state the electors meet at their state capitols cast their official votes the next day, Dec. 17.
About three weeks later on Jan. 6, the vice president, presiding over a joint session of Congress, receives and tallies those Electoral College votes.
The ECRA’s changes
Before the ECRA, the certification of presidential election results was governed by the Electoral Count Act. That law, passed in 1887, was meant to address another Electoral College crisis that came out of the 1876 election. But Campaign Legal Center executive director Adav Noti explained some provisions were loose enough to allow Trump allies try upending the 2020 election’s results at the state and federal level.
“One was trying to get state legislatures to overrule the popular results in their states,” he explained. “And the other was trying to get Congress and or the vice president to basically throw out electoral votes when they were counted in January of 2021.”
Part of defusing those strategies, Idelson explained, is just being more explicit about timing and responsibilities. The ECRA makes it clear the time for deciding electors is Election Day, not through state legislative action after the fact.
“And this language replaces something that was intended to do the same thing,” she said, “but because it was written in a somewhat vague way and talked about a failed election, was misperceived or misrepresented, to potentially open the door to saying, hey, we didn’t like the way the election went, it was fraudulent, we can do something different.”
The ECRA also places explicit authority for submitting them in the hands of the governor, unless the state had previously put it in the hands of another official. Under previous law, the authority for appointing electors was more diffuse allowing for state legislatures to assert a role in settling disputes. Following the 2000 election, the U.S. Supreme Court even determined the legislature “may, if it so chooses, select the electors itself.”
If a dispute arises, the ECRA requires expedited court proceedings to review the case at the U.S. District Court in Washington D.C., with an eye toward settling disagreements before the Electoral College meets.
Michael Thorning from the Bipartisan Policy Center argued that’s important, because there are complications in elections from time to time even if people are acting in good faith. In 1960, for instance, Hawaii’s governor submitted a slate of electors for Richard Nixon only to find after a recount that John F. Kennedy had actually won the state. At the time, some members of Congress weren’t sure which slate to accept, and partisans have cited the incident in election disputes for the 2000 and 2020 presidential election.
“There’s a way to resolve that in a definitive way before the certificate gets to Congress,” Thorning said. “Because what the law says is that if you go through this court process, and the court rules, as they may have in the Hawaii case, that one set of electors is not the correct set, it’s this other one, you’ll have a definitive answer.”
“So had we had the ECRA maybe in 1960 versus the old version of the law, that ambiguity might never have come up,” he added.
Once lawmakers are meeting in the Jan. 6 joint session to tabulate the votes, the ECRA sets a higher threshold for challenging electors. Under previous law, objections needed only one U.S. representative and one U.S. senator. Now, a challenge will require one fifth of both chambers.
“And the one other adjustment that ECRA made,” Idelson added, is that if an objection is made and then sustained by a vote in both chambers, “then that number is subtracted from the denominator when it comes time to calculate if someone has won a majority of the electoral votes.”
Thorning explained that undercuts a tactic partisans tried in 2020. Throwing out some electors while keeping the overall number steady could keep either candidate from reaching a majority, thus putting the decision in the hands of the U.S. House of Representatives where the GOP held an advantage.
“So, the ECRA really shut down the avenues of attempted overturning of the election from 2020,” Noti described. “State legislatures aren’t an option anymore. Congress isn’t really an option anymore.”
But he acknowledged in states like Georgia, some officials are looking for ways to gum up the works for certification at the local level. The state elections board there has approved rules allowing counties to delay certification while investigating purported discrepancies as well as requiring a hand count of ballots at polling places.
The state’s Republican attorney general has warned the board it is likely exceeding its authority, and Noti doesn’t believe their efforts will go anywhere either. He noted Georgia’s Secretary of State has already publicly insisted on counties meeting the state certification deadline which falls well before the federal one.
“And there’s an opportunity to get a court order if somehow (counties don’t certify),” Noti said. “So quite a few safeguards built into the system in case there is an effort to slow things down at the at the county level.”
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