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Top Lawyer Omar Ochoa Explains the Electoral Count Act and Why the House Voted to Reform It

In late September of 2022, the US House of Representatives passed the Presidential Election Reform Act, which updates the Electoral Count Act to make the will of voters more difficult to overthrow. Nine Republicans joined with Democrats to pass the bill, with a final tally of 229-203 in favor.

To help explain what this legislation does and why the House passed it, US Reporter turned to award-winning attorney Omar Ochoa, founder of Omar Ochoa Law Firm in Texas.

What is the Electoral Count Act?

The Electoral Count Act was originally created in 1887. According to Ochoa, it lays out “the rules that Congress follows to confirm the results of a presidential election, as well as the procedure Congress follows to count and certify those votes.”

Ochoa noted efforts to revise the Electoral Count Act are new.

“There’s never been a serious push to reform the Electoral Count Act before this,” he stated, “and that’s because it was never really challenged the way it was in the 2020 election process. Before that, Congress just certified the votes.”

Ochoa pointed out that election results have been disputed in the past, such as in the 2000 presidential election, when the US Supreme Court stopped Florida’s recount, effectively handing victory to George W. Bush. “But even in the past, when those arguments came up, there was never really a push to change the Electoral Count Act,” Ochoa said, “because nobody saw the need to do it.”

Efforts to overturn the results of the 2020 Presidential Election, however, prompted representatives to clarify Congress’s role.

The need for reform

“The 2020 election threw a lot of wrenches into what was previously a very ministerial process,” Ochoa explained. “Many questions came up: What authority does the Vice President have to throw out votes? What are the rules by which Congress can consider challenges to electoral votes? These are all questions that had never really been raised before. Formalizing election results was just procedural.”

In the wake of his election defeat, former President Trump encouraged allies to test this long-standing process, searching for areas of ambiguity to exploit. Perhaps the most high-profile example was his unwarranted assertion that then-Vice President Pence had the authority to change the election’s outcome.

“Now, there’s a push — mainly among Democrats, but also some Republicans — to implement common-sense rules to address these blurred lines,” Ochoa said. “The goal is to clean up the Electoral Count Act and make sure its rules are more clear before the next presidential election.”

Changes to the Electoral Count Act

The Presidential Election Reform Act makes a handful of changes. The first is to limit the Vice President’s role in the process, ensuring no Vice President will ignore the will of voters and their legitimately designated electors.

“In both the House and Senate versions of this bill, the idea is to clarify that the Vice President simply supervises the process,” Ochoa said. “He or she is not somebody who can arbitrate whether votes are objected to or can determine whether or not votes are thrown out.”

The second change would make it more difficult for members of Congress to object to states’ electoral votes.

“A minimum number of Representatives in the House and Senators would be required to sign on to a challenge before Congress would consider it during the confirmation process,” Ochoa explained. “More people would need to object before an objection could even be considered.”

The bill also specifies the kinds of reasons members of Congress must give for their objection to be considered. “It would define what grounds can be asserted to object,” Ochoa said. “So rather than accepting a whole host of things, it defines what those objection grounds are more narrowly.”

The last change relates to federal court cases pertaining to elections.

“There were legal challenges after 2020,” Ochoa pointed out. “Some within the legal world considered that there wasn’t much guidance in determining whether federal judges should challenge or throw out electoral votes. This Act would delineate when federal judges could force election counts or force election results to be certified, so this would provide that kind of guidance.”

Will it become law?

The future of the Presidential Election Reform Act remains uncertain. While the bill has passed in the US House of Representatives, it must still clear the US Senate.

“It’s probably unlikely that the bill will be passed before the midterm elections,” Ochoa said. “There could be an agreement between the House and Senate leaders for a bill to be passed, but it’s not very likely.”

Numerous hurdles have slowed the process, including an already crowded legislative calendar and continued questions about the Senate version. In order for the bill to pass the Senate, it would also have to garner enough Republican votes to achieve the filibuster-proof threshold of 60. 

Ochoa believes the fate of the bill hinges on the outcome of the midterm elections in November of 2022. “Most of the support for reform is on the Democratic side, not on the Republican side,” he explained.

If Republicans take back a majority of either chamber of Congress, therefore, they will have the power to scuttle the legislation, and the Electoral Count Act will not be reformed.

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