Election Day has come and gone, but officials in every state still have several important dates ahead to verify the final vote tally. The process for this election differs from in the past. Several changes were made because of the Jan. 6 insurrection at the Capitol.
“We will never give up. We will never concede. It doesn’t happen,” then-President Donald Trump said before protesters stormed the Capitol on Jan. 6.
When Congress passed its government spending bill in December 2022, it included the Electoral Reform and Presidential Transition Improvement Act. The bill included changes to the process in which presidential election results are transferred from the states to Congress. Both Republican and Democratic lawmakers backed the measure.
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“I was so pleased to see Democrats and Republicans work together to pass the Electoral Reform Act,” President Biden said on Jan. 6, 2023. “America is a land of laws and not chaos, a nation at peace and not violence.”
The new law updates legislation from nearly 130 years ago. After the election of 1876, when Rutherford B. Hayes defeated Samuel Tilden, both parties were accused of committing fraud. Republicans stuffed ballot boxes, and Democrats intimidated Black voters, who at the time overwhelmingly supported the Republican Party. Both parties claimed victory after fraudulent incidents were reported. Around 20 electoral votes were contested, but the Constitution contained no guidance on how to handle a contested election.
An electoral commission eventually decided each contested state in favor of Hayes, and about a decade later, Congress passed the Electoral Count Act of 1887. The law provided a system for certifying elections, but remained unchanged until 2022.
“You’ve got literally a group of insurrectionists trying to overturn the election based on an 1887 law from the Rutherford Hayes days that had not been updated,” said Sen. Amy Klobuchar, D-Minn.
The 1887 law did not include a hard deadline for states to certify their appointment of electors or any guidance on how federal courts could resolve disputes over a state’s appointment of electors.
“It is vague and ambiguous and contributed to some of the confusion on Jan. 6,” said Sen. Susan Collins, R-Maine.
State Certification Deadline
The Electoral Reform and Presidential Transition Improvement Act now creates a deadline for when states must certify their appointment of electors. This must happen six days before the electors meet to vote.
Legal Challenges Deadline
The new law also includes an expedited procedure for courts to resolve disputes over state’s appointment of electors. Any challenges must be addressed before the state electors meet.
State Electors Vote
Members of the Electoral College meet in each state to cast votes for president and vice president.
Electoral Votes Arrive
The electoral votes must be received by the president of the Senate and the archivist no later than the fourth Wednesday in December.
Congress Counts Electoral Votes
Congress will once again count the votes on Jan. 6, but several clarifications have been made to the process. If any members object to the votes, it must be submitted in writing and signed by at least one-fifth of the House and one-fifth of the Senate.
“The Congress still has options in case of a truly extraordinary circumstance. But we avoid an arms race or objections with almost no support,” said Senate Leader Mitch McConnell, R-Ky, during a hearing on the bill in September 2022.
While the 1887 law did not explicitly state the vice president could decide on the electoral count, the 2022 language clarifies the role of the vice president. It states:
“The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.”
