With leading Congressional election denier Mike Johnson of Louisiana elected Speaker of the 
House of Representatives in October 2023, many people worried that Johnson’s election would lead to future election chaos.
While Speaker Johnson continues in his election denialism, a bipartisan 2022 law probably neuters any power the Speaker would have to overturn a future election. Before I explain the new law, I’ll explain why the reform was needed.
Two important safeguards stood in the way of the Trump team. First, in state after 
state, court after court, in front of judges appointed by every president, including Trump, going back to the Reagan years, they could not win any victory in a court of law. The reason was that they had no evidence. Therefore, the second thing stopping them was simply facts. This isn’t my interpretation. Every judge in every venue said the same thing. Even Rudy Giuliani admitted it. When he attempted to pressure the Republican Speaker of the House in Arizona, Rusty Bowers, to use the Republican Majority in the State Legislature to overturn the election, Mr. Bowers asked for evidence. Giuliani, an attorney, said, “We’ve got lots of theories. We just don’t have the evidence.”
Even former President Trump admitted this. After his handpicked Republican 
Attorney General and the Director of the Cybersecurity and Infrastructure Security Agency, Christopher Krebs, told Trump point-blank that there was no evidence of significant fraud, he persisted in his delusional beliefs. In sworn testimony, former Acting Deputy Attorney General Richard Donoghue recounted President Trump’s attempts to influence the Justice Department to further back his allegations of election fraud. The committee presented a visual of a handwritten note by Donoghue, documenting the former president’s directive to the DOJ, which stated, “Simply state that the election was tainted and allow me and the R (Republican) Congress members to handle the rest.”
A bipartisan group of Senators led by Republican Susan Collins and Democrat 
Joe Manchin spent a year crafting a new law to revise the outdated Electoral Count Act of 1887. The finished product, The Electoral Count Act of 2022 (ECRA), is a bipartisan law passed by Congress in December 2022.
The ECRA is designed to help avoid some of the problems in the 2020 election when then-President Donald Trump and his allies pressured state officials to overturn the election results in their states. The ECRA also aims to make it more difficult for members of Congress to object to state-certified election results.
Here are some of the critical provisions of the ECRA:
- Raises the threshold for objecting to electors: Under the previous law, only one member of each chamber of Congress was needed to object to an elector or slate of electors. The ECRA raises this threshold to one-fifth of the members of both chambers. This change will make it more difficult for frivolous objections to be sustained.
- Clarifies the vice president’s role: The ECRA clarifies that the vice president’s role in counting electoral votes is “solely ministerial.” This means that the vice president does not have the power to overturn election results.
- Codifies the role of state governors: The ECRA codifies the role of state governors in sending forward their state’s slate of electors. This means that state legislatures cannot overturn the results of a presidential election in their state.
- Provides for expedited resolution of disputes: The ECRA creates a new process for resolving disputes over electors before those disputes reach Congress. This will help to ensure that election results are finalized quickly and definitively.
The Electoral Count Reform Act is an essential step toward protecting American democracy. By making it more difficult to subvert election results, the ECRA helps ensure the people’s will is respected. If it works as designed, the votes of every American will be counted and not overturned by a partisan clique in Congress.
Here are some specific examples of how the ECRA could have helped to avoid some of the problems of the 2020 election:
- Trump attempted to have Vice President Mike Pence decide to have some of the votes sent back to the states, based on a theory its creator, attorney John Eastman, admitted would fail. The ECRA clarifies that the role of the Vice President is simply ceremonial, thereby eliminating this argument from any future vote counts.
- The Trump team had contingent Electors, which are perfectly legal, standing by in case a recount overturned Biden’s win in Michigan and Georgia. Under direction from Trump’s team in Georgia, the Electors forged documents, claiming they were the official Electors of their state. Trump lawyers who were part of that effort have already pled guilty to committing crimes. The ECRA clarifies that only the Governor of a state can submit Electoral Votes.
- Republican members of Congress, distrusting Republican elected officials such as Governors Doug Ducey of Arizona and Brian Kemp of Georgia, attempted to overturn the election results by having one Senator and one House member bring a motion to challenge the vote totals they provided. The ECRA would make it more difficult for this to happen by requiring a one-fifth vote of both chambers of Congress to object to a state’s slate of electors.
- In Georgia, Trump pressured Secretary of State Brad Raffensperger to “find” enough votes to overturn the election results in that state. The ECRA would make it more difficult for Trump to do this by codifying the role of state governors in sending forward their state’s slate of electors.
- In Congress, Trump and his allies challenged the election results in several states. The ECRA would make it more difficult for them to do this by raising the threshold for objecting to electors and providing expedited dispute resolution.
The ECRA is not a perfect law, but it significantly improved over the previous law. It is an important step towards protecting American democracy and ensuring that people’s will is respected.
Speaker of the House Mike Johnson voted against these common-sense reforms, as did almost all Republicans in the House and many in the Senate. The election deniers, led by Johnson, Senator Ted Cruz, and others, desperately tried to keep the law vague to allow for potential future chaos.
BONUS:
Click here to discover what would have happened if the physical Electoral Votes had been destroyed in the insurrection!
