On January 6, 2021, then-president Donald Trump successfully disrupted a core tenet of our democracy—the peaceful transfer of power—and he did so by attempting to weaponize the Electoral Count Act (ECA) of 1887. January 6th has made clear the need to implement legal safeguards to protect our democracy from the likes of Donald Trump, and ECA reform is an essential component of that process.
Enacted by Congress over 100 years ago, the ECA serves as the guiding law for the transfer of power: it sets timelines for states to appoint presidential electors, governs the process of casting Electoral College votes, and outlines the congressional procedure of counting votes.
But it’s also exceedingly outdated. Its founders wrote the law’s antiquated, ambiguous text before women even gained the right to vote, and, as we saw on January 6th, its vague wording invites bad actors to reinterpret its original meaning for anti-democratic ends.
CREW sent a letter to Senate Majority Leader Chuck Schumer, both commending a bipartisan group of senators for their efforts to reform the ECA and offering areas for further improvement. Specifically, the currently proposed reforms would close loopholes that the former president tried to exploit—instead of sanctioning Trump’s reinterpretation of the vice president’s role in certifying elections, for example, the ECA should clearly define the vice president’s capacity as “solely ministerial.” Similarly, to prevent a repeat of the actions of the Trump-appointed GSA administrator who delayed giving the Biden administration transition funds and office space, the law should guarantee resources to both parties’ candidates during the transition period of a contested election. To further strengthen the reforms, we’ve also suggested enlarging the post-election litigation period to allow time, if needed, for a well-founded recount or factual hearing and proposed creating a clear legal standard for judicial review.
Most importantly, we’ve urged Schumer to embark upon the greater task of fixing our electoral system as a whole. Congress must pass the John Lewis Voting Rights Advancement Act to ensure that every American, regardless of their background, can fairly cast their vote at the ballot box.
Congress has a duty to protect our democracy and to champion every American’s right to vote—we urge Majority Leader Schumer to include our proposed reforms in ECA legislation and to take further action to reform our electoral system in its entirety.