What is the Electoral Count Reform Act, and how does it affect the 2028 election?

The Electoral Count Act of 1887 (ECA) was enacted in the wake of the disputed 1876 presidential election between Republican Rutherford Hayes and Democrat Samuel Tilden. That election was decided by a special Electoral Commission -- five senators, five representatives, and five Supreme Court justices -- after competing slates of electors were submitted by three Southern states. Congress passed the ECA to create a statutory framework for counting electoral votes and resolving disputes. The original ECA set a safe harbor date for state certification, established the Vice President's presiding role, and allowed members of Congress to object to a state's electoral votes, but its language on those provisions was ambiguous. For more than 130 years, the law was rarely invoked and its ambiguities went untested.

The Electoral Count Reform and Presidential Transition Improvement Act of 2022 (ECRA) was enacted as part of a bipartisan omnibus appropriations bill and signed by President Biden on December 23, 2022. The ECRA replaced the 1887 ECA's most contested provisions with four core reforms. First, the Vice President's role during the joint congressional session is explicitly limited to ministerial and procedural functions: the presiding officer may not reject, delay, or otherwise interfere with the counting of a state's certified electoral votes. Second, the threshold for a valid congressional objection is raised from one member of each chamber to one-fifth (20 percent) of the members of each chamber -- a substantially higher bar intended to prevent frivolous objections. Third, each state's governor must certify the winning slate of electors 'pursuant to the laws of such State enacted prior to Election Day' -- a governor may not substitute an alternative slate based on laws or findings made after the election. Fourth, federal courts have jurisdiction to hear expedited challenges to governor certifications before the joint session convenes, providing a judicial resolution pathway within the statutory timeline.

The ECRA preserved the Electoral Count Act's safe harbor mechanism, which protects a state's certification from congressional challenge if completed by a set deadline. Under 3 U.S.C. Section 5 as reformed, a state that certifies its electoral results pursuant to pre-Election-Day laws and within 35 days of Election Day earns a conclusive presumption: Congress must count those results. For the 2028 presidential election, the safe harbor deadline is December 12, 2028 (35 days after November 7, 2028). States that miss the safe harbor deadline can still certify, but their results are subject to potential objection during the joint session. After certification, each state's electors meet in their state capital in December to cast their official presidential and vice-presidential electoral votes, which are sealed and transmitted to Congress and the National Archives.

Congress will convene a joint session on January 6, 2029, to count the 2028 presidential electoral votes. The Vice President presides in a purely ministerial capacity, announcing the results as the votes are counted. If a candidate has received at least 270 of the 538 electoral votes, the Vice President declares that candidate elected. If no candidate reaches 270 -- whether because of a tie or a successful objection removing enough electoral votes -- the 12th Amendment's contingent election procedure applies: the House of Representatives, with each state delegation casting one vote, chooses the President from among the top three electoral-vote recipients, and the Senate, with each senator casting one vote, chooses the Vice President from the top two vice-presidential electoral-vote recipients. Under the 20th Amendment, the winner is inaugurated as the 48th President at noon on January 20, 2029.