As Congress convenes on Monday (January 6, 2025) to count the Electoral College votes and formally affirm President-elect Donald Trump’s victory in the 2024 election, the shadow of the Capitol attack from January 6, 2021, lingers. However, this year’s joint session will operate under a revamped set of procedures aimed at preventing any attempt to subvert the electoral process.
Unlike four years ago, when then-Vice President Mike Pence faced intense pressure to reject electoral votes from key battleground states, the joint session will now adhere to the Electoral Count Reform Act of 2022. This bipartisan legislation was designed to clarify the vice president’s role and prevent ambiguities in the process of certifying presidential election results.
“The 2020 election highlighted how ambiguities in the Electoral Count Act could be exploited to create chaos and disrupt the peaceful transfer of power,” said Holly Idelson, a policy strategist at Protect Democracy, a nonpartisan organization. “The bipartisan Electoral Count Reform Act of 2022 will ensure smoother transitions that honor the will of voters.”
Understanding the Electoral Count Reform Act of 2022
In December 2022, Congress enacted the Electoral Count Reform Act as part of a broader government spending package. The law updates the original Electoral Count Act of 1887, addressing weaknesses exploited during the 2020 election that led to unprecedented challenges to the electoral process.
The revised act establishes clearer procedures governing the certification and counting of electoral votes, aiming to prevent future disruptions like those seen on January 6, 2021.
Key Changes to the Certification Process
State Certification of Electors
After the November election, states issue “certificates of ascertainment” to formally designate electors for the presidential and vice-presidential candidates who won in each state. The new legislation mandates that these certificates, issued by a state’s executive—typically the governor—must be treated as conclusive by Congress, barring extraordinary circumstances.
Additionally, federal courts are designated as the final arbiters of disputes over the appointment of electors. Their rulings are binding on Congress, ensuring a uniform and legal resolution of controversies.
This provision addresses incidents from the 2020 election when alternate slates of Trump electors in battleground states falsely claimed legitimacy. According to federal prosecutors, the scheme sought to create confusion on January 6, positioning then-Vice President Pence to replace legitimate electors with fraudulent ones.
Clarifying the Vice President’s Role
The Electoral Count Reform Act explicitly limits the vice president’s role during the joint session to a ceremonial capacity. The vice president is tasked with overseeing the proceedings but has no authority to unilaterally determine or reject electoral votes.
This clarification directly responds to the events of January 6, 2021, when President Trump and his allies pressured Pence to overturn the election results. Pence resisted, stating in a letter to lawmakers that the Constitution does not grant the vice president unilateral power to decide which votes to count.
“The vice president’s role is largely ceremonial,” Pence wrote, an interpretation now enshrined in law. Vice President Kamala Harris, whom Trump defeated in November, will preside over Monday’s session to certify Trump’s electoral victory.
Raising the Bar for Objections
The new law also increases the threshold for lawmakers to object to a state’s electoral votes. Previously, an objection required the support of just one senator and one House member. Under the revised rules, objections must now be submitted in writing and signed by at least one-fifth of both the Senate and the House.
Furthermore, objections are limited to two specific grounds:
- If a state’s electors were not lawfully certified.
- If the vote of an elector was not “regularly given.”
If these criteria are met, both chambers of Congress must separately deliberate on the objection. It can only be upheld with majority approval in both the House and the Senate.
Lessons from the Past
The 2022 reforms aim to prevent a repeat of the chaos that unfolded during the 2020 election certification. On January 6, 2021, the Capitol attack disrupted the joint session and brought into focus the vulnerabilities in the original Electoral Count Act. Over 140 police officers were assaulted, and several lives were lost in the aftermath.
Federal prosecutors later revealed that the violence was part of a broader scheme by Trump’s allies to subvert the transfer of power. While Trump faced federal charges related to this plan, they were dismissed after his 2024 election victory. Some of his allies are still facing legal challenges in states like Arizona and Georgia.
Looking Ahead
The Electoral Count Reform Act represents a significant step toward safeguarding the integrity of future presidential elections. By clarifying the certification process and reinforcing the vice president’s limited role, the law seeks to protect against future attempts to undermine the electorate’s will.
As Congress gathers on Monday to fulfill its constitutional duty, the lessons of January 6, 2021, will undoubtedly weigh heavily on the proceedings, serving as a reminder of the importance of a peaceful and lawful transfer of power.
