Election means first test for changes to electoral vote process

WASHINGTON — In the coming months, the main legislative change Congress enacted in response to the Jan. 6, 2021, attack on the Capitol faces its first major test — and election experts expect it to pass.

Many of those experts think that the new law, the Electoral Count Reform Act, made enough changes to plug vulnerabilities exposed by President Donald Trump’s effort to overturn the election results in 2020. And they say it will be enough to reject efforts from Trump or other Republicans to dispute the presidential election results in court if they lose again this year.

Ben Ginsberg, a longtime election lawyer at Jones Day and Squire Patton Boggs who has represented Republican presidential candidates, said he felt the new provisions that specify how certification and court challenges would be conducted were a “big step forward” to resolving ambiguities about any post-Election Day disputes.

“You never know how any statute, let alone an elections statute, is going to hold up in an unprecedented situation,” Ginsberg said. “So you do your best, and the Electoral Count Reform Act is a huge step forward in clarifying issues that needed clarifying since the statute was drafted in the 1870s.”

The law, passed in 2022 as part of a bipartisan reaction to the attack on the Capitol, laid out specific procedures for presidential election certification, challenges and more.

After Election Day in 2020, Trump’s campaign brought lawsuits to attempt to stop the counting of votes in multiple states, encouraged states not to certify results in states Trump lost, engineered slates of false electors behind the scenes and backed members of Congress who objected to the results on Jan. 6, 2021, even as the Capitol was swarmed by rioters.

“The ECRA was designed to help avoid exactly some of that chaos that was created from ‘what if’ scenarios in 2020,” Justin Levitt, a law professor at Loyola Marymount University who served as the White House Senior Policy Advisor for Democracy and Voting Rights, said.

The new law changed procedures such as how states appoint presidential electors, how court challenges to the results should play out and the actual counting of votes on Jan. 6, 2025.

The ECRA mandates that states appoint their presidential electors on Election Day, unless a major event like a natural disaster occurs. The law also set the governor of each state as the official to certify the appointment of electors, which must happen by Dec. 11 this year — ahead of the Dec. 17 meeting of electors.

That certification can only be altered by a federal court, and the law gives courts a say in how each step of the process plays out.

The law sets up three-judge panels to hear election cases and gives litigants a direct line to the Supreme Court. It also prevents candidates from bringing claims other than those laid out in the law, such as the governor’s certification and transmission of the results, in that expedited process.

Levitt said that although the election is close in the polls, it’s unlikely that it would ever be so close that a court case could resolve it.

“It’s legitimately very, very close, but it’s not litigation close, and so the voters will decide this, rather than the lawyers or the courts,” Levitt said. “And to me, that means there isn’t a Mount Everest of a court case. The question presumes we’re in the Himalayas, and we’re not, we’re in Kansas.”

The 2000 election and the Supreme Court’s decision effectively handing the presidency to George W. Bush has made people think it’s always possible — not just when the election hinges on less than 1,000 votes in Florida.

“We are conditioned to think that you can litigate your way to an election result, because in at least some of our lifetimes, there was a black-swan occurrence where the margin of error vastly exceeded the margin of victory, and we all watched as absolutely everything mattered,” Levitt said. “When an election is 537 votes close, everything matters. Whether it’s partly cloudy or partly sunny matters.”

Bruce Spiva, a senior vice president at the Campaign Legal Center, said the ECRA’s changes will almost certainly cut down on potential litigation after the election.

“I think that there could be litigation around those issues, but the Electoral Count Reform Act at least is very clear about whose role it is to certify and when they have to do it, and provides for a process for resolution,” Spiva said.

Spiva also said courts have quickly slapped down efforts by election officials to refuse to certify local results, which he said should continue this year.

Congressional counting

The law also changed the process for the Jan. 6 counting of electoral votes in Congress. Under the new procedures, the vice president has no power to accept or reject Electoral College votes while presiding over the joint session of Congress.

Additionally, the law makes it more difficult for members of Congress to raise objections to the count, by raising the threshold from one member in each chamber to one-fifth of the membership of each chamber.

Finally, the law changed the Electoral College calculation so that any state removed from the total also reduces the number required to reach a winning majority.

Trump has given every sign that he intends to dispute a loss this year, experts said. During the current presidential campaign, Trump has repeated false statements that he actually won the 2020 election, including at the presidential debate in September. Also at a rally in September, Trump said he could only lose this year’s contest because “they cheat.”

Trump and his allies have repeatedly pointed to unsubstantiated claims of noncitizens voting in this year’s election, which election experts fear will be used to justify claims of fraud after the vote.

Trump has continued to spread evidence-free claims of fraud online ahead of the election, including about key swing states like Pennsylvania. Early Wednesday, Trump posted on his social media platform Truth Social that an unnamed “they” were “cheating” in Pennsylvania and urged law enforcement action.

During his rally at Madison Square Garden last weekend, Trump referred to an unspecified “little secret” he had with House Speaker Mike Johnson, R-La., that could improve his odds in the election.

“Our little secret is having a big impact. He and I have a little secret — we will tell you what it is when the race is over,” Trump said.

Edward Foley, a constitutional law professor and director of The Ohio State University’s election law program, said it would be difficult for Trump to leverage any House procedure to change the results.

Foley said efforts to delay the counting of Electoral College votes would not result in Trump being able to take office, and a contingent election — in which the House votes by state delegation to select the president — only occurs if there is no majority in the Electoral College once the votes are counted.

Some observers see the potential legal landmines in another way: creating a pretext for the Supreme Court to intervene. Michael Podhorzer, chair of the Defend Democracy Project and a former political director at the AFL-CIO, told reporters on a call Monday that he sees unsubstantiated claims by Trump and his allies around noncitizen voting as laying the groundwork for post-election claims of fraud.

Podhorzer said those efforts are about “discrediting the results” and leading to pretext for the Supreme Court to give Trump back the election.

Prominent critics of the current Supreme Court have laid out similar concerns, pointing to the court’s decision earlier this year that presidents are immune from most federal charges for official acts.

After Trump’s loss in the 2020 election, dozens of federal lawsuits followed — including a challenge by the state of Texas against the voting results in four states Trump lost that made it all the way to the Supreme Court.

The justices turned aside that suit and others in the flurry of legal activity after the election.

By contrast, Vice President Kamala Harris has said she would accept the results of the election if she loses.

That’s a perception that’s baked into the public; a Pew Research poll released earlier this month showed that about 70 percent of voters believe Harris would accept the results if she loses, and a similar percentage believe Trump would not.