In December 2022, Congress passed a landmark reform to the Electoral Count Act of 1887, addressing ambiguities in the law that had contributed to the chaos of Jan. 6, 2021.
The revised law not only strengthens the safeguards around the certification of presidential elections but also underscores the critical role of certification in the peaceful transfer of power—a cornerstone of American democracy.
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What is Certification?
Certification is the official process by which the results of a presidential election are validated. After citizens cast their votes in November, each state organizes and certifies its results according to state laws. These results determine the electors who will cast their votes in the Electoral College. Once the Electoral College meets in December, the certified votes are sent to Congress, where they are counted in a joint session held in early January.
The Vice President’s Role
Before the 2022 reform, the Electoral Count Act designated the vice president as the presiding officer during the joint session of Congress, where electoral votes are tallied. This role is largely ceremonial. The vice president announces the results as determined by the states and Congress, without discretionary power to alter or reject the votes.
However, ambiguities in the original law led to dangerous misinterpretations during the 2020 election. Then-President Donald Trump and his allies claimed that Vice President Mike Pence had the authority to reject certain states' electoral votes, despite bipartisan legal consensus that this was not the case. The resulting pressure campaign contributed to the January 6 attack on the Capitol.
The new reforms explicitly clarify that the vice president’s role is purely procedural, ensuring there can be no further misinterpretation of their authority.
Changes to the Objection Process
Another key update to the Electoral Count Act is the threshold for objecting to a state’s roster of electors. Previously, objections required only one member of the House and one senator, leading to prolonged debates even over baseless claims. Under the new law, objections must be supported by at least 20% of both chambers, significantly reducing the likelihood of frivolous challenges derailing the certification process.
How Certification Affects Presidential Transitions
Certification is more than a formality; it is the legal acknowledgment of a president-elect and enables the transition of power. Federal agencies rely on certification to begin crucial activities like providing funding and security briefings to the incoming administration.
Delays in certification can have serious consequences. For example, after the 2020 election, then-President Trump’s refusal to accept the results led to a delayed start for President-elect Joe Biden’s transition team. This hindered the incoming administration’s ability to prepare for pressing challenges, such as the COVID-19 pandemic and national security threats, by blocking the administration access to federal agencies such as the United States Department of Health and Human Services.
The Broader Impact of Reform
The 2022 reforms aim to prevent similar disruptions by tightening the rules around certification and ensuring that election outcomes reflect the will of the people. By clarifying the process and reducing opportunities for exploitation, the updated Electoral Count Act reinforces the integrity of presidential elections and safeguards against attempts to undermine democracy.
As Senator Joe Manchin noted during an Issue One panel, “We’re holding on by a thread…a very, very thin thread of democracy.” With these reforms, Congress has taken an essential step to strengthen that thread, ensuring that future presidential transitions remain orderly, transparent, and firmly rooted in the rule of law.