Electoral Count Act: What is it, how did it play a role in the 2020 election and Jan. 6, and why are there calls to change it?

The Electoral Count Act was created to provide clarity around contesting election results. Lawmakers and experts say it needs a second look.

  • The Electoral Count Act was created in 1887 as a result of the bitterly contested election of 1876
  • It came into play on Jan. 6, 2021, when Republicans contested the electoral votes in two states: Arizona and Pennsylvania.
  • Some in Congress have argued the law is too ambiguous and needs to be updated.

WASHINGTON – When a mob breached the U.S. Capitol one year ago, part of its goal was to pressure Vice President Mike Pence to not affirm the presidential election that found Joe Biden to be the victor.

The vice president presides over the Senate, a role that includes  declaring during a joint session of Congress the next president-elect. Despite pressure from President Donald Trump and the violence that ensued Jan. 6, 2021, Pence followed precedent and affirmed Biden's win. 

More:Jan. 6 committee plans to seek voluntary testimony from former VP Mike Pence  this month

What happened on Jan. 6 has lawmakers questioning the Electoral Count Act – a 19th century law that lays out the framework for counting state electoral votes and determines how to deal with disputes to those results. Those seeking to change the statute call it outdated and unclear. 

Rep. Conor Lamb, D-Pa., told USA TODAY reforming the Electoral Count Act should be a priority of Congress, "so there's really no uncertainty around what the vice president and Congress are supposed to do when it comes to opening the electoral votes on that day. We need to eliminate some of the uncertainty that Trump played on in trying to steal back the" election.

Here's what Electoral Count Act is, how it played a role in the 2020 election and the Capitol riot, and how some want it changed. 

What is the Electoral Count Act? 

The Electoral Count Act is a nearly 140-year-old law that specifies how to count the  electoral votes from states for the presidency and vice presidency and what to do if there are objections to the results. 

Congress has a limited role in choosing the next president and vice president, and the Constitution says it is up to states to choose how to run their elections. Once the states count and determine which candidate won, they send election certificates to Congress to count. 

The Electoral Count Act "provides legal framework for casting and counting electoral votes," according to the National Task Force on Election Crises.

It goes a step beyond the Constitution, which simply says, "The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted."

The law establishes a timeline for Congress to meet to count the electoral votes: the sixth day in January. 

The statute appoints two tellers from both the House and Senate during the certification process.

‘This is insane’: Lawmakers relive Jan. 6 horror alongside fresh trauma of effort to rewrite history

The statute says how lawmakers can object to election results in specific states, and if at least one House member and one senator submit an objection, the two chambers separate for debate, then vote on whether to continue counting ballots. 

Vice President Mike Pence and House Speaker Nancy Pelosi preside over the certification of Electoral College votes at the Capitol on Jan. 6, 2021.

 'Convoluted language' 

The Electoral Count Act was created in 1887 as a result of the bitterly contested election of 1876. Congress created the statute because "the Constitution itself is very vague about how Congress receives the electoral votes from the states and what would happen if there ever is a dispute," Edward Foley, the director of election law at Ohio State University, told USA TODAY.

"There was no procedure for what happens if there's any kind of dispute," Foley said. The 1876 election between Democrat Samuel Tilden and Republican Rutherford Hayes was heavily disputed because of contested outcomes in several states. "That was a true crisis."

More:Ohio Rep. Jim Jordan says he won't testify before Jan. 6 committee

In that race, four states submitted conflicting slates of electors, and a commission was formed to decide which electors should be recognized. Republicans got a plurality of the seats on the commission, and Hayes won despite Tilden winning the popular vote. 

"In 1876, the losing Democrat won the majority of the popular vote. There was massive fraud and violence in the election," said Jack Beermann, a professor of law at Boston University. 

The Electoral Count Act was created to avoid similar situations, in which states may send contesting ballots showing victories for both candidates. 

How it works: What GOP allies can do to challenge Trump's loss

Foley acknowledged, “When they wrote in 1887, it was imperfect and very difficult, convoluted language. ... I mean, political scientists at the time said, 'Gobbledygook.’”

How did it come into play in the 2020 election?

The Electoral Count Act came into play in the 2020 election as Republicans contested the electoral votes in two states: Arizona and Pennsylvania. 

In Arizona, Trump and his allies claimed there was widespread fraud, especially in the state's largest county, Maricopa, where Phoenix is located. A Republican-backed review of the election ended without producing proof of Trump's claim.

Fact check: Arizona audit affirmed Biden's win, didn't prove voter fraud, contrary to Trump claim

More:Here's who objected, supported Pennsylvania's election results

Similarly, Trump’s campaign and his allies alleged widespread voter fraud in Pennsylvania.

There was no evidence of widespread voting irregularities, and courts dismissed more than 60 GOP-led lawsuits alleging fraud.

The objections led to hours of debate Jan. 6 and into the next morning. 

Trump and some of his allies in Congress argued Pence had the constitutional authority to decide which states' Electoral College votes counted, and they wanted him to refuse the results in several states where they argued there were voting irregularities.

More:The members of Congress who objected to Joe Biden's Electoral College win amid Capitol riot

Those claims were found to be erroneous. 

Rep. Louie Gohmert, R-Texas, attempted to bring a lawsuit against Pence before Jan. 6. It was dismissed by U.S. District Court Judge Jeremy Kernodle, a Trump appointee, who said the Republicans' arguments that Pence could decide what electoral votes counted "lack standing."

'Lack standing': Rep. Gohmert's lawsuit against Pence to overturn election results thrown out

Refusing the results in the states would have left neither Biden nor Trump with the 270 Electoral College votes needed to be the next president. Pence could have invoked the 12th Amendment, which would have left it to the House to elect the president and the Senate to elect the vice president. 

"That's what the objectors were hoping would happen," Beermann said. Republicans had a majority in 26 of the state delegations, so Trump would have been reelected. "If enough certificates are thrown out, then no one gets a majority in the Electoral College," Beermann said. 

If there is no majority winner, then both chambers would "vote as state-by-state delegations, one vote a state in the House for president, and in the Senate, the senators each get one vote for who's vice president, and that would also follow state-by-state," Beermann explained.

“I hope Mike Pence comes through for us,” Trump said at a rally before Jan. 6. He tweeted Pence had the authority to reject fraudulently chosen electors.

Pence penned a letter before the debate over the objections, writing that his "oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not."

Supporters of Trump who stormed the Capitol erected a gallows and chanted, “Hang Mike Pence” and “Bring out Pence.” 

Pence officially declared Biden the winner at 3:41 a.m. EST on Jan. 7, 2021. 

A year ago, Americans stormed the US Capitol: How a horrific day unfolded.

Bipartisan calls for changes

There have been bipartisan calls to change the statute after what happened one year ago. Many lawmakers have argued the law is too ambiguous and needs to be clarified.

Several committees plan to release reports this year on whether the law should be changed, and if so, how.

Rep. Liz Cheney, R-Wyo., a member of the House Select Committee investigating what happened Jan. 6, told The New York Times that “the 1887 Electoral Count Act is directly at issue” and that the committee would recommend changes.

Senate Minority Whip John Thune, R-S.D., told Axios last week, "The role of the vice president needs to be codified, so it's clear what that is." 

Rep. Zoe Lofgren, D-Calif., another member of the Jan. 6 panel and chair of the House Administration Committee, said in a statement that the events of that day "exposed serious flaws in the Electoral Count Act of 1887. The ECA is antiquated, incomplete, and in dire need of reform."

What reform would look like remains unclear. 

"We expect to release a Committee Staff Report on the subject shortly," Lofgren said. 

Senate Minority Leader Mitch McConnell, R-Ky., told Politico the matter was "worth discussing."

Beermann said the Electoral Count Act should be altered so Congress can't object to the election. Those issues should be left to the states to handle before the results are sent to the vice president and Congress to certify.

"The false predicate was that Congress was entitled to undo the election. And that's just not correct," Foley said. "The Electoral College system is designed to have life electors appointed pursuant to state law, and then what Congress does is count the electoral votes that are sent from the state."

The calls to change the Electoral Count Act come as Democrats seek to pass voting rights legislation.

More:Harris: US won't be ‘role model’ of democracy if voting rights legislation isn’t passed

Some Democrats argued changing the Electoral Count Act shouldn't substitute for larger voting rights legislation, an issue they struggled to address in 2021. 

Senate Majority Leader Chuck Schumer, D-N.Y., said that if Congress doesn't pass voting rights legislation this week, he will put a vote on the floor to change Senate rules on the legislative hurdle known as the filibuster, which has allowed Republicans to block much of the Democrats' agenda, including voting rights. 

“If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” Schumer said last week.