The Big Insight: In four of the last six presidential elections, electoral vote slates submitted by the states faced challenges from senators or members of the House. The recently introduced Electoral Count Reform Act could make such challenges less likely.
The seeds of the Capitol Hill violence on January 6, 2021 were sown by both then-President Trump and House Republicans challenging the validity of electoral slates from the states. Unfortunately, baseless challenges of electoral votes have become common in the aftermath of presidential elections. The recently introduced Electoral Count Reform Act — introduced by a bipartisan group of 16 senators — has several provisions that would make it harder to challenge or overturn presidential vote counts.
Here are five facts on electoral vote challenges.
1. The results of the 2004 election faced an electoral count challenge even though John Kerry lost both the popular and electoral vote and was not contesting the result.
Kerry lost the popular vote by a margin of more than three million, and lost in the electoral vote 286-252. But his loss in Ohio by fewer than 119,000 votes led Sen. Barbara Boxer (D-CA) and Rep. Stephanie Tubbs Jones (D-OH) to object to the certification of that state’s electors for President George W. Bush. The Senate rejected the objection with only Boxer supporting it and 25 senators not voting; the House voted it down 267-31, with 132 representatives not voting. It was only the second challenge to an electoral slate in U.S. history, following the contentious election of 1876.
2. In two of the challenged cases, the candidate who won the electoral vote lost the popular vote.
In 2000, Vice President Al Gore won the popular vote by a margin of about 544,000, but lost the electoral vote 271-267 after the controversial Florida recount. Though many Democrats believed Gore to be the legitimate winner, he conceded defeat in December following the Supreme Court decision in Bush v. Gore. Several members of the House attempted to object to certification, but Gore — in his role as presiding officer — rejected these attempts.
Hillary Clinton’s defeat by Donald Trump in 2016 — with Trump winning a comfortable 306-232 Electoral College majority but losing the popular vote by nearly 2.9 million — led to a grassroots effort to deny Trump the presidency by convincing electors to vote for other candidates. In the end, just seven electors voted for candidates other than Clinton or Trump— and five of them were Clinton electors, with the official tally being a 304-227 Trump win. As in 2000, House Democrats tried to challenge, but lacked Senate support. Vice President Joe Biden, presiding, told one representative, “It is over.”
3. Trump was the only defeated candidate who did not accept the results.
Clinton, Gore, and Kerry each accepted their loss before Congress gathered in January to certify the results. The only time a defeated candidate did not accept the loss was in 2020, when Trump refused to concede to Joe Biden despite losing the electoral vote 306-232 and the popular vote by more than seven million.
In December 2020, Sen. Josh Hawley (R-MO) and Rep. Mo Brooks (R-AL) announced plans to challenge the electors in at least five states, but on January 6, 2021 — in part because of the violence of that day — official objections were filed only to the results in Arizona and Pennsylvania. About two-thirds of House Republicans voted to agree to both objections (121 for Arizona and 138 for Pennsylvania), but only six senators backed the Arizona objection, and seven the Pennsylvania objection.
4. Just one in five Americans is “very confident” about the nation’s elections.
An ABC News poll in December 2021 found that just 20% of Americans are “very confident” that our elections are free and fair — down from 37% in a poll conducted just after January 6, 2021. A Morning Consult poll taken in the wake of January 6 found a huge partisan divide: 82% of Democrats said they trust the U.S. election system “a lot” or “some”; just 33% of Republicans said the same.
5. The Senate Electoral Count Reform Act, focused on fixing the original Electoral Count Act of 1876, has 16 co-sponsors: nine Republicans and seven Democrats.
The bill was introduced by Sens. Shelley Moore Capito (R-WV), Ben Cardin (D-MD), Susan Collins (R-ME), Chris Coons (D-DE), Lindsey Graham (R-SC), Joe Manchin (D-WV), Lisa Murkowski (R-AK), Chris Murphy (D-CT), Rob Portman (R-OH), Mitt Romney (R-UT), Ben Sasse (R-NE), Jeanne Shaheen (D-NH), Kyrsten Sinema (D-AZ), Thom Tillis (R-NC), Mark Warner (D-VA), and Todd Young (R-IN).
The legislation would make each state’s governor exclusively responsible for submitting a slate of electors, provide expedited court review of any claims regarding certification of electors, and clarify the roles of the vice president and Congress in counting electoral votes, among other components.