Elections

For very different reasons, leaders of both parties have been questioning whether we can trust the results from our elections. A lack of faith in our election outcomes on both the left and right poses a serious threat to American self-government. The ability to trust that our representatives have been determined by the voice of the people is the bedrock of the most successful republic in history.

Both the left and right have pursued elections measures that are unrealistic this year because the other side vigorously opposes them. Efforts to find measures wise enough to attract support across the partisan divide are, however, making impressive progress. Those efforts include the work by a bipartisan group of roughly 16 senators led by Senators Manchin (Democrat – West Virginia) and Collins (Republican – Maine). This is largely the same group with whom we successfully worked on infrastructure legislation last year.

Several of the most influential senators in this group encouraged us to pick this issue because they believe we could play a significant role by demonstrating whether, and where, broad consensus exists among the American people. Even more than on our previous issues, Congress is eager to hear what CommonSense Americans think about elections legislation.

This brief provides you with information to form your own judgment about the wisdom of legislative proposals under active consideration in four areas:

1. Electoral Count Act (ECA)—Passed by Congress in 1878, the ECA establishes how and when states certify and send the results of the presidential election to Congress. It also establishes how Congress counts the electoral votes and resolves disputes.
2. Presidential Transition Act (PTA)—The PTA governs how and when a president-elect receives a range of resources so that they can prepare to lead effectively as soon as they are sworn in.
3. State and Local Funding—Congress is considering proposals to increase federal funding for state and local governments to administer elections.
4. Election Worker Protection—Several measures have been proposed to protect election workers against growing threats.

For over a century, the procedures that Congress followed to count the votes in the Electoral College on January 6 following a presidential election amounted to a mere formality. After all, any questions about the vote had been resolved weeks in advance. In the past two decades, however, that has changed. The congressional certification of the electors of each state is no longer simply a ceremonial formality.

It started with congressional Democrats. Beginning with the 2000 presidential election, Democrats have objected to the last three Republican presidential wins. About a dozen House Democrats objected to Florida’s electoral votes during the 2000 certification, but their efforts failed for lack of any Senate support. Four years later, after the 2004 presidential election, a group of 31 House Democrats, joined by a single Senate Democrat, objected to Ohio’s electoral votes, triggering a two-hour debate before Ohio’s slate of electors was accepted. Twelve years later, after Donald Trump’s 2016 win, a half dozen House Democrats objected to the certification of the electors of several states that Trump won but they found no senator willing to join them.

An even more serious departure from the century long practice of bipartisan respect for the established presidential election process followed the 2020 presidential election. President Trump and some Republican allies attempted to circumvent that process and reverse the result of the election in several ways.

First, President Trump and his allies attempted to convince state legislatures in states where President Biden had been certified as the winner to submit slates of electors favoring President Trump instead. They also pressured governors and other state officials in several states to certify Trump’s electors rather than the Biden electors that had legitimately won the state’s election. In addition, they attempted to convince Vice President Mike Pence to assert unilateral authority to reject certain states’ electoral votes.

Finally, President Trump and his allies organized a campaign for members of Congress to raise objections to counting certain states’ electoral votes on January 6, invoking unsubstantiated allegations of voter fraud and other improprieties that had already been rejected by the courts. As a result, six Republican senators and 121 Republican members of the House voted to object to Arizona’s electoral votes, while seven Republican senators and 138 Republican members of the House voted to object to Pennsylvania’s electoral votes. Plans to object to the electoral votes of as many as five other states were abandoned after the violent attack on the Capitol Building interrupted the Joint Session of Congress.

The escalating attempts by both parties to challenge the results of presidential elections have convinced many Republican and Democratic members of Congress, scholars, and election experts that the law governing the counting of electoral votes must be updated. There is wide bipartisan agreement that this law – the Electoral Count Act of 1887 (ECA) – is vague, antiquated, and nearly impossible to interpret.

Many members of Congress and others are particularly concerned that the existing ECA is vulnerable to politically motivated manipulation by Congress or by state officials. After all, we have seen members of Congress from both parties object to state electors during several recent elections. It isn’t a stretch to see how members, feeling pressure from their party might manipulate the results in a future election by voting to reject legitimate electoral votes.

As most Americans know, U.S. Constitution establishes a unique system for electing the president that is different in important respects from the elections we hold for any other public office. Instead of voting directly for the presidential candidates, Americans technically vote for electors selected by the candidates and their political parties. Those electors then cast votes for the presidential candidates in the Electoral College.

From early in our history, many have questioned Congress’s proper role in resolving disputes about presidential elections. That debate climaxed in the Crisis of 1876, in which officials from several states sent in competing slates of electors for different candidates. Ultimately, Congress was able to resolve that dispute, and Rutherford B. Hayes took office.

A decade after the Crisis of 1876, Congress enacted the ECA to prevent another crisis from arising in the future. The ECA establishes a process for Congress to count the electors’ votes and resolve any objections. The ECA directs Congress to treat a state’s final determination of a dispute about electors “by judicial or other methods” as “conclusive” so long as it is reached before a deadline in early December. Unfortunately, the ECA is complicated and vague and has failed to prevent members of Congress of both parties from making objections to state electoral counts that violate the ECA’s provisions. The Majority Staff of the Committee on House Administration has prepared an ECA report that provides a more complete history of the law and its applications.

Over the past year and a half, members of Congress from both parties have worked to develop ECA reforms that would clarify and strengthen the process for Congress counting electoral votes. Their efforts have focused on five specific changes to the law.

This clarification would confirm that the vice president has no substantive role in resolving disputes about electors and has no authority to reject electoral votes or to delay the proceedings.

The ECA currently establishes a timeline by which states must complete different steps in the process of determining their slate of electors and sending them to Congress. In the case that a state has “failed to make a choice” by Election Day, the law gives state legislatures the ability to establish a means of designating those electors after Election Day. The history shows that Congress intended the provision to apply only in the case that a major natural disaster or similarly rare and catastrophic event disrupted Election Day. This proposal would make that meaning clearer and more explicit.

Under current law, if one senator and one member of the House sign an objection, then the chambers must separate for two hours of debate and then vote on the objection. With the proposed change, debate would be triggered only if a significantly higher number of members join the objection.

There is wide concern that the ECA in its current form is unclear on what limits if any, restrict Congress’s power to reject electoral votes. That concern has resulted in a recommendation to include in the ECA a list of the specific grounds for objection that may be raised against counting a state’s electoral votes.

Two types of limited grounds for objection have been proposed. First, a member of Congress may object that the purported electors were not actually appointed by the state. For example, if the certificate is a forgery or the governor submits a certificate that does not reflect the results of the legal process in the state. Second, a member may object that an electoral vote violates the Constitution. For example, if the electoral vote was cast for a candidate younger than 35 years old. Any objections brought on other grounds, including that there was fraud or improprieties in the underlying popular election in the state, would be ruled out of order and would not be considered.

After Election Day in 2020, numerous lawsuits were taken to state and federal court, as happens after many elections. Those lawsuits addressed a wide range of allegations of voter fraud and other improprieties. The existing ECA takes some steps towards ensuring that Congress follow the decisions made by courts in those cases. For example, it says that if a state has provided a means of resolving election disputes “by judicial or other methods” that such rulings “shall be conclusive.” Still, there is wide agreement that the law is convoluted and incomplete on this point. Many have proposed a clearer provision that, if courts have decided a question about whether a state has validly determined its electors, on January 6 Congress must count those electors’ votes.

Under ECA currently, as well as with this clarification, courts do not play a substantive role in appointing electors. The Constitution clearly assigns that responsibility to the states. Instead, courts play the limited role of determining which electors the states had already appointed according to the laws in place on Election Day.

There is bipartisan interest in limiting the right to file a federal lawsuit under the ECA and other statutes to candidates for president and vice president. Generally, a federal court may consider a lawsuit that raises a federal question. This clarification would prohibit a federal court from deciding a federal statutory claim if raised by someone who is not on the ballot as a candidate for president or vice-president.

This clarification would not limit the existing rights of those who could bring a claim in federal court under the U.S. Constitution, including challenges brought under the Equal Protection and Due Process clauses and Congress’s constitutional power to set the date for Election Day.

Two elections in the last twenty years have brought attention to the challenge of presidential transitions. In both 2000 and 2020, the official determination by the federal government of who the president-elect was took place several weeks after the election. As a result, the additional resources provided to an incoming administration to prepare to govern under the Presidential Transition Act (PTA) were delayed.

In 2020, because President Trump was contesting the results, the formal determination came almost three weeks after the election and two weeks after all media outlets had called the election for Joe Biden. Many noted that the delay in transition resources was especially consequential because the new Biden Administration was preparing to govern during a pandemic.

In 2000, the delay in transition resources for the incoming George W. Bush Administration was even longer. The formal determination was not made until December 14, the day that the Supreme Court effectively ended the dispute over the Florida vote in Bush v. Gore. This was a full five weeks after the election.

For most of our country’s history, the transfer of power from one presidential administration to the next was governed by a set of constitutionally grounded norms of cooperation and assistance. In 1964, motivated by a recognition that “[a]ny disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people,” Congress formalized presidential transitions in the PTA. The act provides resources to “assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government.” Those resources include increased funding, access, and in-kind support to both presidential candidates. After the election, those resources and services are significantly increased for the president-elect.

The enhanced support for the president-elect and the end of resources provided to the losing candidate is triggered under the PTA by the Administrator of the General Services Administration (GSA). Although the PTA directs the GSA Administrator to make the determination about the winning candidate, it provides no criteria to guide that decision.

In most presidential elections the decision has been routine and uncontroversial. With the second significant delay in 20 years and the accompanying uncertainty and controversy, a bipartisan consensus is growing for Congress to reform this provision in the PTA.

The current statute requires the GSA Administrator to “ascertain” the “apparent successful candidate.” There is significant bipartisan consensus that this provision has two major problems. The first is the problem that no criteria are provided to guide the Administrator in how to determine who the apparent successful candidate is. Second, many have noted that the GSA Administrator is not well suited for this role. The GSA oversees federal procurement and property management. The agency has nothing to do with election administration. Further, the Administrator is appointed by the current president. The GSA Administrator’s boss may be one of the two candidates (as in 2020 when the Administrator had been appointed by President Trump). In any event, the Administrator will have an extremely strong interest in the outcome of the election (as in 2000 when the Administrator had been appointed by President Clinton). In fact, the GSA Administrator appointed by President Trump noted both of these problems and urged Congress to address them in her 2020 letter making the ascertainment.

Below are three recommendations to amend the PTA to address the challenges to effective presidential transitions that were highlighted by the 2000 and 2020 elections.

Like the first proposal, the GSA Administrator would be required to either (a) ascertain the apparent winner immediately after the earliest of any one of several events occur or (b) explain the failure to do so. The specified criteria could include:

• Concession by the losing candidate
• State certification of a majority of electoral votes for one candidate
• No pending litigation with the potential to change the results
• One week has passed since the election

The PTA makes clear that during the period between Election Day and ascertainment, both candidates continue to receive support at pre-election levels. This change would simply provide that if ascertainment is delayed, for example by one week, both candidates for president would receive the full resources as if they are each the apparent successful candidate.

Election officials are used to “making do” with what they have. They often express pride in pulling off the complicated logistical maneuvers necessary to conduct elections on a shoestring budget.

One consequence of the frugality imposed on election administration is that services provided to voters vary considerably across the nation. Some states and localities flood their voters with voter guides, use the most up-to-date equipment, and deliver information and services on sophisticated websites. Others provide only minimal services to voters, rely on voters to figure out the details of voting on their own, and use equipment that is no longer manufactured or is incapable of being updated with the latest security patches.

Given the issues with underfunding, bipartisan interest in providing more federal dollars to support state and local governments is growing. Republicans and Democrats alike want to be able to trust our elections.

Current Cost of Elections in the U.S.

To assess whether and how much new federal funding should be provided, it is important to understand what the funding need is. Hard figures on the cost to conduct elections in the U.S., however, are hard to come by. To meet the need, CommonSense American partnered with the MIT Election Data + Science Lab to produce a new report. Much of what follows in this section of the brief is a summary of that 17-page “The Cost of Conducting Elections” report.

The MIT/CommonSense American report found that studies relying on different methodologies across the past two decades have come up with ballpark estimates that are overall consistent with one another. Those studies estimate the total cost of elections being in the range of $4 billion to $6 billion, in a “normal” year, and that spending in 2020 could have reached $10 billion.

For the sake of scale, the U.S. Census Bureau estimates that local governments spent $2.0 trillion in 2018. An annual bill for $5 billion to run elections would amount to 0.25% of local government spending. The estimated cost of conducting elections on an annual basis is roughly what local governments spend managing public parking facilities.

Are current spending levels enough?  A consensus exists within the election administration community that elections are underfunded nationwide, with certain locations more underfunded than others. Questions remain about how large the funding gap is, where the gaps are the largest, and how to fill them.

Background on Federal Role in Election Funding

For most of the nation’s history, state and local governments paid for the entire cost of administering elections, even in federal election years. In exchange, states were given a great deal of autonomy to determine how elections were to be conducted.

Even when Congress mandated that state and local governments follow certain procedures – such as the Voting Rights Act in 1965, the Uniformed Overseas Citizens Absentee Voting Act (UOCAVA) in 1986, the Military and Overseas Voter Empowerment Act (MOVE Act) in 2009, and the National Voter Registration Act (NVRA), commonly known as “Motor Voter” in 1994 – none of those mandates was actually funded.

Indeed, one could argue that the requirement in the Constitution that states conduct federal elections, and that Congress can make or alter the “times, places and manner” of those elections that the states conduct is the nation’s first unfunded mandate.

The federal government began to help fund the mandates it placed on states for conducting elections after the 2000 presidential election when the narrow Florida recount caused the country to turn its focus to election administration. The resulting legislation, the landmark Help America Vote Act (HAVA), was passed in 2002. Among its many provisions, HAVA required that all states utilize a statewide voter registration system, prohibited the use of punch card and lever voting equipment, and required accessible voting equipment in every polling location.

It also created the  Elections Assistance Commission (EAC), an independent, bipartisan commission charged with developing guidance to meet HAVA requirements. The EAC serves as a national clearinghouse of information on election administration and oversees the development and implementation of voting system guidelines.

Unlike prior voting legislation, Congress authorized and appropriated funds to fulfill the highest-profile goals of the law. Funds appropriated in 2003 under Section 101 of HAVA ($350 million) could be used flexibly to improve election administration. Section 251 funds, amounting to $2.6 billion, could be used to meet the equipment upgrade requirements of HAVA. As of the end of 2020, the EAC reports that 94% of these funds had been spent.

After a few years of relative quiet, a presidential election once again brought renewed attention to our nation’s elections. This time it was the concern about attempts by foreign adversaries to interfere with the 2016 election through a series of cyberattacks on state and local election administrators.

As a result, Congress decided to make its first HAVA appropriations since 2010 when it appropriated a total of $880 million over three fiscal years ($380 million in FY18, $425 million in FY20, and $75 million in FY22) to be dispersed by the EAC to states and localities to improve election security, most notably cyber security. The EAC reported in September 2021 that 48% of the funds distributed to states under this program had been spent.

Most recently, Congress appropriated $400 million in the CARES Act to assist with election expenses arising because of COVID. The EAC reported in April 2022 that 95% of funds originally distributed to the states under the CARES Act have been spent.

In addition, private philanthropy contributed over $400 million to state and local election offices in 2020.

Congress is considering two main federal funding proposals to support state and local governments in administering elections.

1. Another one-time appropriation to address specific and pressing needs

Congress could do another round of one-time federal funding to help state and local governments address specific challenges they currently face. One leading example is to fund election security by helping states with equipment upgrades (both voting systems and voter registration systems) and other security needs.

This would be consistent with the role the federal government has played since 2002, financing the replacement of decrepit voting machines, supporting the rapid expansion of cybersecurity capacity, and helping with pandemic-related expenses.

Such an appropriation would likely be in line with some of the more recent federal appropriations in the $400 to $500 million dollar range.

2. Annual general appropriation over the next ten years

By providing a longer, ongoing, and more general funding commitment, Congress could give election administrators the ability to develop budgets based upon the reasonable assurance of the availability of such funds. This predictability is aimed at reducing the amount of hoarding that has plagued recent federal appropriations and would allow state and local governments to be more strategic with their investments. That is important because a significant portion of fundamental election administration costs are uneven.  For example, the need to purchase voting equipment comes only come every ten and twenty years when that equipment reaches the end of its useful life. With guaranteed funding over ten years, state and local elections administrators would have more choice about where the funds are best invested rather than having that determined by Congress.

As with HAVA, Congress could include a financial “maintenance of effort” requirement to ensure that state and local governments don’t cut existing expenditures. These federal appropriations should be viewed as additional support, not replacement.

What is the appropriate amount of such annual support? One way to look at this is to say that ballots contain four types of elections – three types of candidates (federal, state, and local) and ballot questions (referendum, amendments, etc.). Therefore, the federal government should pick up roughly one-quarter of the cost of elections, at least in federal election years. This rule-of-thumb might amount to around $1 billion or a little more annually (roughly one-fourth of the $4 – $6 billion total annual cost).

A more ambitious approach is to base federal support on the amount of federal only voters, a sum that is proportional to the number of those people who only vote in federal elections. Because these “federal-only” voters are about one-third of all voters, this rule-of-thumb suggests an annual federal fair-share outlay approaching $2 billion (roughly one-third of the $4 – 6 billion total annual cost) for the support of elections, both current and capital expenses.

Threats of violence and acts of intimidation directed toward election workers have increased significantly. Election workers include full- and part-time state and local election officials and the large temporary workforce who administer U.S. elections. The growing threat has contributed to staffing shortages and a loss of institutional knowledge because of increased election worker resignations and difficulty in recruiting new talent.

Rising concern for election workers’ security and the challenges it poses for accessible and secure elections have resulted in a growing bipartisan consensus that Congress should address the problem.

Explicit criminal penalties for threatening, intimidating, or harassing election workers would be established by expanding and clarifying existing federal statutes. For example, existing prohibitions against voter intimidation could be expanded to include intimidation of election workers. Another example would be to strengthen an existing federal statute permitting the Department of Justice to prosecute an individual who injures, intimidates, or interferes with an election official if the Attorney General certifies federal prosecution would be “in the public interest and necessary to secure substantial justice.” The clarifications would explicitly include election workers processing ballots and tabulating, canvassing, or certifying votes.

Threats to election workers recently have frequently taken the form of their personal information – like their home addresses – being published, or encouragement to intimidate and harass election workers and their families at their homes. To protect election workers against these threats, existing privacy protections would be explicitly extended to persons performing official duties in elections. This provision would make it unlawful to knowingly make personal information of an election official or their family public with the intent of harassment. A Minnesota bill, for example, creates civil and criminal penalties for disseminating an election worker’s personal information. Some proposed state bills would also add digital privacy protections for election officials.

Federal resources for gathering and communicating information about threats to election workers and for investigating and prosecuting those threats would be increased. These proposals would provide dedicated, on-going resources to respond to growing threats, initiated by federal agencies. For example, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency and the Election Assistance Commission each provide resources for protecting election worker security and responding to threats. The Department of Justice recently created an Election Threats Task Force. See Appendix D .

Before asking general concluding questions, the final policy question to consider is the linkage between the four election issues this brief has covered.

More than any other, the topic of Electoral Count Act updates is fueling the bipartisan effort to pass elections legislation in 2022. Despite the challenges the hard-fought mid-term elections create for bipartisan efforts this year, many Democrats and Republicans agree that clarifying the antiquated law is urgent and important.

Democrats are generally more interested in passing additional federal measures beyond ECA updates than Republicans. In fact, some Democrats say that they will vote against ECA legislation if Congress does not also pass additional elections legislation. Likewise, some Republicans say that they won’t vote for ECA legislation if it is tied to other federal legislative measures on elections.