Helping States Comply with the Electoral Count Reform Act
In response to the events that unfolded at the Capitol on January 6, 2021, Election Reformers Network was among early voices calling for reform of the Electoral Count Act (ECA), the old and poorly written law used to support dubious legal theories for overturning the presidential election. Shortly thereafter, a bipartisan group of lawmakers set about establishing a new, clearer framework to govern how presidential elections should proceed. That effort culminated in the Electoral Count Reform Act (ECRA), which was signed into law on December 29, 2022, by President Joe Biden.
Because of the ECRA’s passage, many states will find that the laws governing their presidential elections now require an update to comply with federal law. Our new report, Helping States Comply with the Electoral Count Reform Act, aims to assist policymakers and administrators in navigating these essential changes.
Despite its national character, the presidential election is administered state-by-state. States establish their own procedures for how voters cast their ballots, how those ballots are counted and confirmed, how objections to the process may be raised and adjudicated, and how electors are chosen. State law also establishes how those electors meet and cast their votes for President and Vice President. The United States Constitution and federal law place a series of guardrails around these procedures, but states both fill in the gaps and execute the process.
The goal of this study is to address any uncertainties and expedite specific post-election processes so that there is no room for the kind of unfounded arguments and conflicts that occurred in the aftermath of the 2020 election. Election Reformers Network is also in the process of working with lawmakers and coalitions in key individual states to identify areas for improvement in each state's election code by 2024.
The report summarizes the impact of the ECRA on state law. It provides six recommendations, subdivided into topics on what to look for and what to change. Each recommendation starts by explaining the ECRA framework before describing how to adjust state law to fit that framework.
The recommendations need not always be adopted through legislation – some could be incorporated by rulemaking, or even referenced by courts when determining appropriate requirements, remedies, and deadlines in particular cases. For each recommendation, determining how to best translate it into state-specific action can proceed in several ways, depending on the state context. For example:
- Legislatures could assign the role of reviewing current law and making recommendations to a standing elections committee, to an ad hoc committee created for that purpose, or to their legislative services body.
- Executive officials like the governor, secretary of state, or attorney general could create a task force within their office to review laws, issue updated regulations/guidance, or make recommendations to the legislature (ideally in coordination with each other).
- Non-governmental institutions like good government groups or universities could create their own task force of academics, legal experts, retired public officials, and so on to do their own review and then lobby the legislature with their recommendations.
This report’s six recommendations are divided into two broad categories: urgent and long-term.
The four urgent recommendations are:
1. Check post-election deadlines.
- Update state laws that reference deadlines.
- Establish firm, stable deadlines for canvassing votes.
- Establish that election processes, including audits and recounts, should be completed "as soon as possible, but no later than" the deadline.
- Consider including an ambitious default timeline along with the option for extended deadlines under certain circumstances.
- Establish firm filing and resolution deadlines for election contests.
2. Check certification roles and procedures.
- Clearly define which state executive has the duty to issue and transmit the certificate of ascertainment.
- Reference or mirror the language of the ECRA in describing the duties of the state executive.
3. Check contents of the certificate of ascertainment.
- Reference or mirror the language of the ECRA in describing the contents of the certificate of ascertainment.
4. Check elector roles and procedures.
- Update the date that electors meet.
- Set the place that electors meet by statute.
- Establish how vacancies are filled.
- Check other laws regarding electors for conflicts.
The two long-term recommendations are:
5. Check whether state law adequately anticipates how to handle election emergencies.
- Enact statutes providing express guidance on how an emergency is declared.
- Create a hierarchy of remedial election modifications.
- Consider also providing a modified meeting location and other protective measures for the electors themselves.
6. Check state election contest procedures and other litigation procedures.
- Consider creating an expedited route for election contests and election litigation to be considered without appeal.
All these recommendations are further discussed in the full report linked below.