Case Study 1 — The Electoral Count Reform Act of 2022: A Bipartisan Reform Under Stress

The problem the act addressed

The Electoral Count Act of 1887 was Congress's response to the disputed presidential election of 1876, in which competing slates of electors from three Southern states produced a constitutional crisis resolved only by an extraconstitutional commission. The 1887 statute was meant to provide a clearer process for counting electoral votes and resolving disputes. For more than a century, it operated reliably enough that few Americans had ever heard of it.

The events of January 6, 2021, exposed loopholes that scholars had identified for decades but that had never been tested under sustained partisan pressure. Three loopholes mattered most.

The vice-presidential role. The 1887 statute was unclear about whether the Vice President's role in counting electoral votes was purely ceremonial or whether the VP could refuse to count, count alternative slates, or unilaterally invalidate state-certified results. Vice President Pence's January 6 letter, citing constitutional scholars across the spectrum, took the ceremonial view; pressure to do otherwise had been intense.

The objection threshold. Under the 1887 statute, a single member of each chamber — one senator and one representative — could trigger a debate and vote on objection to a state's electoral votes. This low threshold was used in 2001, 2005, 2017, and 2021. In each case, objections failed; in 2021, the objection process became part of a broader effort to delay certification.

Categories of valid objection. The 1887 statute's language about which categories of objection were valid was ambiguous. Could a state's electoral votes be objected to on the grounds that the underlying election results were disputed? On the grounds that the certification process was contested? On the grounds of irregularities at any level? The ambiguity invited maximalist arguments.

After January 6, scholarly reform proposals emerged within weeks. Bob Bauer (former Obama White House counsel) and Jack Goldsmith (former Bush administration OLC head) co-authored After Trump: Reconstructing the Presidency (2020) and continued to write on electoral-count reform. The Election Reformers Network, the American Law Institute, the Bipartisan Policy Center, and a wide range of scholars across the spectrum produced reform menus.

The bipartisan coalition

The political coalition that ultimately enacted reform was unusual. It included:

Republican senators. Susan Collins (Maine, the original lead Republican on negotiation), Mitch McConnell (the minority leader, whose support was necessary to overcome the Senate filibuster), Lisa Murkowski (Alaska), Mitt Romney (Utah), Rob Portman (Ohio), Roy Blunt (Missouri), Pat Toomey (Pennsylvania), Bill Cassidy (Louisiana), John Cornyn (Texas), Shelley Moore Capito (West Virginia), Lindsey Graham (South Carolina), Joni Ernst (Iowa), Cynthia Lummis (Wyoming), Todd Young (Indiana), Ben Sasse (Nebraska), Thom Tillis (North Carolina), and others. Eighteen Republican senators voted for cloture on the final package — well over the ten required.

Democratic senators. Joe Manchin (West Virginia, Collins's lead negotiating partner), Chuck Schumer (majority leader), and the Democratic conference broadly.

Independent senators. Kyrsten Sinema (Arizona, who registered as Independent in late 2022 but was at the time of negotiation a Democrat) was a key participant in negotiations.

House supporters. Liz Cheney (Wyoming), Adam Kinzinger (Illinois), and others — most of whom would no longer be in Congress when the bill became law, given the political costs of their post-January-6 stances within the Republican Party.

The coalition's structure was unusual in two respects. First, it crossed the partisan divide on electoral process — historically, electoral process reform has been one of the most partisan-coded areas of legislation. Second, it included senators who disagreed sharply about the broader question of January 6 (some of the Republican signatories had voted to acquit former President Trump in his second impeachment; the coalition did not require ideological agreement on the larger political question). What it required was agreement on the narrower technical question: were the 1887 statute's loopholes a problem worth fixing?

The legislation

The Electoral Count Reform Act and Presidential Transition Improvement Act of 2022 (ECRA, included in the December 2022 omnibus appropriations bill) made several specific changes.

Vice-presidential role. The act explicitly clarifies that the Vice President's role in counting electoral votes is "ministerial" — purely ceremonial, with no authority to reject, refuse to count, or count alternative slates of electors.

Objection threshold. The act raises the threshold for objections from one senator + one representative to one-fifth of each chamber (twenty senators and eighty-seven representatives, in the current composition). The new threshold is meaningful: it requires a substantial coalition to trigger an objection, not a single member.

Categories of valid objection. The act narrows the categories of valid grounds for objection. Objections must specifically allege that the electoral votes of a state were not "regularly given" by lawfully appointed electors. The objection process is no longer a vehicle for re-litigating the underlying election.

State certification timing. The act tightens the timeline for state-level certification of presidential electors and clarifies the federal-court emergency-timeline procedures for any disputes that arise.

Presidential transition improvements. The companion provisions clarify the General Services Administration's authority to begin transition support without waiting for an Electoral College count, addressing a concern that arose in late 2020.

Why this reform succeeded

The chapter argues that bipartisan reform succeeds when four conditions are met: narrow scope, shared threat, no visible partisan advantage, and sustained coalition. The ECRA satisfied all four.

Narrow scope. The act addressed specific identifiable loopholes in the 1887 statute. It did not attempt to remake the Electoral College, regulate state election law, address campaign finance, or take on broader voting-rights questions. The narrowness was deliberate. A more comprehensive package (which some Democrats preferred) would not have attracted the Republican coalition that the package required.

Shared threat. Senators of both parties recognized that the loopholes in the 1887 statute had been exposed and would be exploitable by future actors. The threat was not that one party would benefit from continuation of the status quo; it was that future presidential elections could be subject to disputed-certification crises that neither party wanted to face.

No visible partisan advantage. The reform did not change who counts electoral votes (still Congress) or how electors are chosen (still by the states). It clarified the ceremonial role of the Vice President — a role that, going forward, would be held by VPs of both parties. Republicans and Democrats had a shared interest in clarifying the role under any future composition of the executive branch.

Sustained coalition. Senator Collins led a sustained, eighteen-month negotiation. Bob Bauer and Jack Goldsmith provided continuing scholarly framing. The Bipartisan Policy Center, the American Law Institute, and others provided sustained support. Senator Manchin's Democratic leadership and Senator McConnell's Republican leadership ensured floor consideration. The coalition did not require any senator to abandon their position on the larger question of January 6; it required only their agreement on the narrower technical reform.

What ECRA did NOT do

The act is a model of bipartisan reform precisely because it was disciplined about scope. It did not address — and was not designed to address — the broader voting-rights agenda that the John Lewis VRA and the Freedom to Vote Act would have addressed; the campaign-finance issues raised by Citizens United and post-2010 super PAC growth; partisan gerrymandering (which after Rucho v. Common Cause is a state-court matter); judicial reform of the Supreme Court; or any of the constitutional reforms (Senate apportionment, abolishing the Electoral College, term limits) that progressives or some conservatives might prefer.

By staying narrow, ECRA achieved what the broader reforms did not: enactment.

Lessons

The case carries several analytical lessons for the chapter's larger argument about reform.

Bipartisan reform is possible — but the bipartisan zone is small. The conditions that produced ECRA do not extend to reforms that visibly advantage one party, that address comprehensive rather than narrow questions, or that require either side to abandon a politically charged position.

Scholarly and civil-society infrastructure matters. The Bauer-Goldsmith analytical framework, the American Law Institute's working group, and the Bipartisan Policy Center's reform menu were not incidental to the political negotiation; they were the substantive backbone that made the negotiation possible. Reform infrastructure outside the Senate is part of how bipartisan legislation actually gets built.

Narrow reforms can address real problems. Critics of the ECRA approach argued that it left too much undone — that addressing electoral-count loopholes without addressing voting rights, campaign finance, and gerrymandering was insufficient. The counter-argument is that getting one piece of structural reform enacted is preferable to getting zero, even if the broader agenda remains unfinished. Reasonable people can disagree about whether incrementalism is sufficient; the analytical point is that it is the actually-available channel for federal structural reform under current conditions.

Reform after a stress test, not before. ECRA was possible because January 6 had exposed the 1887 statute's loopholes in a way that produced widespread bipartisan recognition of the problem. The reform did not anticipate the stress test; the stress test produced the conditions under which reform became possible. Whether reform can be achieved in the absence of a recognized crisis — for permitting reform, for civic education, for narrow judicial reform — remains an open question.

The Electoral Count Reform Act stands as a contemporary example of structural reform under genuine bipartisan coalition. It is not a model that scales to every reform on this chapter's menu. It is a real example of what bipartisan structural reform actually looks like when conditions align.

A note on the limits of the model

It is worth being explicit about what ECRA is not. Many critics of the broader political moment after January 6 — across the political spectrum — believed that ECRA, while welcome, was insufficient. From one side, the criticism was that ECRA addressed counting procedures without addressing the underlying voting-rights questions raised by post-2013 changes in state election law. From the other side, the criticism was that ECRA effectively codified Vice President Pence's view of the Vice President's role, which some argued had been an open question and which the codification effectively settled.

Both criticisms have substance. The defense of ECRA is not that it solved every concern but that it solved the specific technical problems that the 1887 statute's loopholes had created. A reform that addresses identifiable technical problems is a different kind of contribution than a reform that resolves contested constitutional questions. ECRA was the former, not the latter. The reformers were explicit about this and the legislative record reflects the choice.

Whether further reforms in the same vein — narrow, technical, threat-driven, with sustained cross-partisan coalition — will become possible depends on whether subsequent stress tests produce conditions analogous to those that made ECRA possible. Part of what made ECRA legislatively feasible was that the events of January 6 had been visible, recent, and bipartisan in their unwelcome character. Future technical reforms in election administration may or may not have similar conditions available. Reform analysts who hope to extend the ECRA model would do well to identify in advance the specific technical problems that the next round of reform should address, so that when conditions align, a coalition can move quickly. Reform readiness is itself a form of reform infrastructure.