In less than two months, voters in Ohio and across the country will head to the polls. If all goes smoothly — and there’s no guarantee it will — we could find out who won the presidential, congressional, and other elections later this evening. What happens next is what got us into trouble in 2020, and that’s what the 2022 bill known as Vote Counting Reform Act is intended to clarify.
After the 2020 election, former President Trump refused to accept defeat. He filed dozens of lawsuits that yielded no results and harassed state officials in Georgia to find him votesAmbiguities in the previous law gave Trump allies enough room to believe they could overturn the election during the Jan. 6 certification ceremony.
The Vote Counting System Reform Act establishes specific dates for state-level certification between the election and a joint session of Congress. It also raises the threshold for challenging electors and clarifies that the vice president’s role as presiding officer is purely ministerial — the vice president cannot unilaterally reject electoral votes and certification.
In conclusion, Holly Idelson of Protect Democracy said: “I think the ECRA bumper sticker could make January boring again.”
Timeline in Ohio and under ECRA
This year, Election Day is Nov. 5, but Ohioans who want to vote early or by mail can do so starting Oct. 8. Absentee ballots for overseas voters have already been sent out. Voters who choose to cast an absentee ballot must have it postmarked by Nov. 4, and it must be received by Nov. 9 to be counted.
After Election Day comes the counting of votes, where local election officials make final tallies while party representatives and supporters or opponents of the ballot issue watch. Under Ohio law, this cannot begin until five days after the election (November 10), but must begin within 15 days (November 20). County boards must complete the official counting by November 26.
After conducting a survey, Ohio officials issue something called a certificate of determination. It’s basically document showing the official vote tallies and slates of electors for each presidential candidate. It is signed by the governor and secretary of state and forwarded to the national archivist.
Under ECRA, the certificate must be issued by December 11, and any disputes arising from the dispute must be resolved by December 16. In each state, electors meet in their state capitals and cast their official votes the next day, December 17.
About three weeks later, on January 6, the Vice President, presiding over a joint session of Congress, receives and counts the votes of the Electoral College.
Changes in ECRA
Before ECRA, the certification of presidential election results was governed by the Electoral Count Act, which was passed in 1887 to resolve another Electoral College crisis stemming from the 1876 election. But Campaign Legal Center Executive Director Adav Noti explained that some of the rules were so lax that Trump allies could try to overturn the 2020 election results at the state and federal levels.
“One was to get state legislatures to overturn the results of the vote in their states,” he explained. “The other was to get Congress or the vice president to essentially reject the electoral votes when they were counted in January 2021.”
As Idelson explained, part of dismantling these strategies is simply about making timing and accountability more explicit. ECRA makes it clear that the time to decide electors is on Election Day, not on legislative action after the fact.
“And that language replaces something that was supposed to do the same thing,” she said, “but because it was written in a pretty vague way and it talked about a failed election, and it was misunderstood or misrepresented, it potentially opens the door to saying, hey, we didn’t like the way the election went, it was a fraud, we can do something different.”
ECRA also gives the governor express authority to make them, unless the state has previously delegated it to another official. Under previous law, the authority to appoint electors was more diffuse, allowing state legislatures to play a role in resolving disputes. After the 2000 election, the U.S. Supreme Court even ruled that the legislature “may, if it so decides, choose the electors itself.”
In the event of a dispute, ECRA mandates expedited legal proceedings to hear the case in the U.S. District Court in Washington, D.C., with the goal of resolving disputes before the Electoral College meets.
Michael Thorning of the Bipartisan Policy Center has argued that this is significant because complications occasionally occur in elections, even when people act in good faith. For example, in 1960, the governor of Hawaii submitted Richard Nixon’s slate of electors, but a recount showed John F. Kennedy had won the state. At the time, some members of Congress were unsure which slate to accept, and partisans cited the incident in election disputes before the 2000 and 2020 presidential elections.
“There is a way to finally resolve this before the certification goes to Congress,” Thorning said. “Because the law says that if you go through this lawsuit and the court rules, as it did in Hawaii, that one set of electors is not valid, but the other one is, you have a definitive answer.”
“If we had ECRA in 1960, rather than the old version of the law, this ambiguity might never have occurred,” he added.
When lawmakers meet in a joint session on Jan. 6 to count the votes, ECRA sets a higher threshold for challenging electors. Under previous law, challenges required only one U.S. representative and one U.S. senator. Challenges will now require one-fifth of both chambers.
“And one other change that ECRA has made,” Idelson added, “is that if an objection is raised and then supported by a vote in both chambers, “then that number is subtracted from the denominator when it comes time to calculate whether someone has a majority of electoral votes.”
Thorning explained that this undermines a tactic the parties tried to employ in 2020. Throwing out some electors while keeping the overall number constant could prevent any candidate from achieving a majority, handing the decision over to the U.S. House of Representatives, where the Republican Party held an advantage.
“So ECRA has really closed the door on trying to overturn the 2020 election,” Noti described. “State legislatures are no longer an option. Congress is no longer an option.”
He admitted, however, that in states such as Georgia, some officials are I’m looking for ways to ruin the work for certification at the local level. The state election board there approved rules allowing counties to delay certification while they investigate alleged discrepancies, and requiring hand counting of votes at polling places.
The state’s Republican attorney general warned the board that probably exceeding his authorityand Noti also doesn’t believe their efforts will lead to anything. He noted that Georgia’s secretary of state has already publicly urged counties to meet state certification deadline which falls much earlier than the federal one.
“And there’s the potential for a court order if (counties don’t certify in some way),” Noti said. “So there’s quite a few safeguards built into the system in case there’s an attempt to slow things down at the county level.”
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