Fourth, the ECRA requires a fifth of each house of Congress — currently 87 members of the House and 20 senators — to consent before a vote may be held on a challenge to electors. That threshold would have prevented challenges in 2005 and 2021 from coming to a vote. Current law allows just a single member of each chamber before an objection is heard. The ECRA does not raise the threshold for throwing out a state’s certified electors beyond a simple majority of both houses, because of concerns over whether Congress could legally bind a future Congress that was determined to do so by majority vote.

The ECRA states that “the only grounds for objections” are that electors were not lawfully certified, or that “the vote of one or more electors has not been regularly given.” In light of the mischief created by efforts to read the phrase “regularly given” to include any challenge to the regularity of the underlying election, we would prefer to see a definition of this term made explicit, but the new language at least does no further harm.