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Congress may change this arcane law to avoid another Jan. 6

Senate Minority Leader Mitch McConnell, R-Ky., walks to the Senate floor at the U.S. Capitol on Wednesday. McConnell says he may be open to reforming the Electoral Count Act.
Drew Angerer
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Senate Minority Leader Mitch McConnell, R-Ky., walks to the Senate floor at the U.S. Capitol on Wednesday. McConnell says he may be open to reforming the Electoral Count Act.

It's a law that has been described as "almost unintelligible," "arcane" and "extremely complex."

It's also the law that determines who will be president.

The Electoral Count Act of 1887 has been derided by legal experts almost since it was first written, and this week, members of both parties in Congress opened the door to updating the legislation. As the first bit of voting-specific policy to even get a sniff of bipartisanship in recent years, it's a notable development.

But it's still far from a sure thing.

Here's a quick overview of what the law is and where things stand.

Poorly written legislation

The Electoral Count Act came as a reaction to the presidential election of 1876, which saw Democrat Samuel Tilden win the popular vote but ultimately lose the presidency to Republican Rutherford B. Hayes because of contested election results coming from three Southern states under the control of Reconstruction governments: Florida, South Carolina and Louisiana.

The three states each sent in multiple competing electoral returns, and Congress had no rules in place to deal with such a scenario.

So, it created an ad hoc commission to decide the presidency, which ended up giving the states' returns, and with them the presidency, to Hayes.

Democrats at the time were furious over the decision and only accepted it in a deal known as the Compromise of 1877, which stipulated that Republicans agreed to end Reconstruction and withdraw federal troops from former Confederate states.

A decade later, Congress passed the Electoral Count Act into law to avoid similar situations in the future, but "the crafters of this law unfortunately did a terrible job," says Rebecca Green, the co-director of the Election Law Program at William & Mary Law School.

"Some of the processes just don't make sense in the modern world," she said.

The legislation is "extraordinarily complex" and "far from the model of statutory drafting," according to an analysis by the National Task Force on Election Crises (of which Green is a member), but the law does create a framework and timeline for when states need to have their election results finalized.

According to the law, the Electoral College is to meet in states across the country on the first Monday after the second Wednesday in December to cast their votes.

If a state has finalized its results six days before then, according to the ECA, then those results qualify for "safe harbor" status — meaning Congress must treat them as the "conclusive" results, even if, for example, a state's legislature sends in a competing set of results.

But the law also allows members of Congress to easily object to results submitted by states and to prolong the counting process, even without legitimate concerns, and according to legal experts, it does not do a good enough job clarifying the vice president's role. Then-Vice President Mike Pence's role became the focus of efforts on Jan. 6, 2021, to overturn the last election.

"In our view, modernizing the ECA may well be the single most important step Congress can take to prevent a crisis in the next contested presidential election," writes the National Task Force on Election Crises in its list of recommendations for updating the law.

Democrats are wary of GOP motives

For years, and especially since last year's attack on the Capitol, Democrats have been clamoring for Republicans to defend what they see as the fragile guardrails of democracy with federal legislation.

And this week, it seems as if for the first time, Republicans may be willing to play ball with regards to the Electoral Count Act.

"It obviously has some flaws. And it is worth, I think, discussing," said Senate Minority Leader Mitch McConnell, R-Ky., in an interview with Politico on Wednesday.

Moderate Democrats Joe Manchin, D-W.Va, and Kyrsten Sinema, D-Ariz., also endorsed looking at the law, but a number of more liberal Democrats did not. Instead, they made it clear that they see Republican interest in reform of the counting process as a way for the party to avoid engaging with other structural protections of voting rights.

"Some scorekeeping matters little if the game is rigged," said Senate Majority Leader Chuck Schumer, D-N.Y.

Election experts, however, are urging Democrats to engage in strengthening the elections process wherever there is a glimmer of bipartisanship.

"It doesn't address the larger problems with how our elections are run, but that said, it seems like a fairly straightforward place to start," said Green, of William & Mary. "It seems to be low-hanging fruit."

It's especially important to do it this year, said Ned Foley, an election law expert at The Ohio State University.

"The time to address [these problems] is now," Foley said. "Now is the maximum veil of ignorance: where the two political parties don't know exactly what the lay of the land is going to be in '24 and '25, and so there's a greater chance of bipartisan consensus on the clear procedures for governing the process."

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Corrected: January 7, 2022 at 8:00 PM AKST
In a previous version of this story, we incorrectly said the Electoral Count Act was passed nine years after the Compromise of 1877. The legislation was passed in 1887, or 10 years later.