Loopholes in Democracy: Fixing the Electoral Count Act of 1887

Autumn is off to a busy start in D.C. with efforts to keep government operating (continuing resolution), improve our infrastructure (BIF), align our future priorities (budget reconciliation), and protect our voting laws (John R. Lewis Voting Rights Advancement Act of 2021). While perspectives on these issues vary between — and even within — the political parties, not everything needs to be contentious.

Fixing loopholes in the Electoral Count Act of 1887 (ECA) — a law signed by President Grover Cleveland during Reconstruction — would be a long-overdue improvement both parties can get behind. Just think of it like an infrastructure bill for political stability.

Business for America hosted a discussion on October 1st to discuss the ECA’s vulnerabilities with Trey Grayson, Republican former secretary of state of Kentucky and member of the National Task Force on Election Crises, Rachel Kleinfeld, senior fellow at the Carnegie Endowment for International Peace and the founding CEO of the Truman National Security Project, and Genevieve Nadeau, counsel at Protect Democracy. We also discussed how the business community can step up to encourage Congress to make these essential changes.

Throughout our nation’s history, the Electoral College vote and subsequent congressional count has proven to be problematic — it wasn’t just the Bush/Gore or Trump/Biden elections of recent memory. Part of the ECA’s difficulty stems from the fact that it was written in an era when it took weeks for states to report and deliver votes to Washington. What’s more, the law’s wording is murky. It was, in part, confusion over the intent and responsibilities of the vice president as outlined in the ECA that contributed to the chaotic events of January 6th.

Rachel Kleinfeld noted that the transition between administrations is a vulnerable period from a national security perspective. Problematic vote counts slow down transitions and appointments of high-ranking officials. For example, the 9/11 Commission said the lack of approved nominees to national security positions undermined the country’s preparedness for the 9/11 attacks.

Businesses — and all Americans — are threatened by problematic electoral counts and slow administration transitions. As Business for America has advocated, the nation’s economic and business climate depend upon clear rules in our democratic institutions, including the Electoral College process.

Genevieve Nadeau said ECA changes — consistent with the Act — would be “boring and technocratic,” focused on the process and timing to instruct Congress on how to oversee elections from the states, approve electoral counts, and quickly resolve disputes. However, she noted that changes are needed to reduce the risk of instability. During the 2020 Election, Vice President Mike Pence faced pressure from several corners to throw out electors from key battleground states and thus overturn the 2020 election. An update of the ECA should clarify exactly what and what not the vice president can do with the electoral count and congressional approval process. Nadeau also believes the threshold for objecting to another state’s results should be raised; currently only one member of Congress needs to raise an objection to slow the approval process down.

Trey Grayson, who as secretary of state oversaw two presidential elections in Kentucky, suggested that politically, now is the right time to address the ECA while both parties are uncertain who their 2024 presidential nominees will be given the age of President Biden and former President Trump. Grayson noted that when every issue in Washington is viewed through blue and red lenses, it’s important to note that updating the ECA will not benefit one party over another, and action to clarify the Electoral College process and vote count should have support regardless of one’s political ideology.

At BFA, we want Congress to continue strengthening our democratic institutions. An ECA update would benefit everyone without giving either party an advantage. Having a clear set of rules in place, that make sense regardless of who’s in power, is essential. Before the 2024 presidential campaign begins in earnest, Congress, on a bipartisan basis, should introduce and move forward with legislation to strengthen the ECA. Doing so will produce no losers, just a stronger democracy.