Cross-Ideological Support for Electoral Count Act Reform

A reform of the Electoral Count Act could be one step to prevent another January 6. It would remove Congress from the power to challenge or undermine certified election results. In an op-ed, law professors Edward Foley and Richard Pildes made this argument. They are four lawyers who have a wide range of political views and disagree on very few things.

The two fundamental principles that underlie their arguments for ECA Reform are:

To avoid a repetition of Jan. 6 or worse, Congress needs to rewrite and revise the Electoral Count Act. This outdated 1887 law governs certification of presidential votes. It is urgent that there be a set of clear rules for the certification of presidential votes.

A second consideration is that Congress should not be considered a board for national recounts or an adjudicator of the results of presidential elections. Congress does not have the authority to revise a state’s popular votes.

They explain that the ECA was a platform for mischief. Decent reforms could make January shenanigans less difficult.

The four authors provide several suggestions for reform.

Whenever there is just one submission of electoral votes from a state — in other words, no competing slates of electors — Congress should disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed. The state can decide who wins the state, and the policies are established before the election. Congress cannot accept the electoral votes of that state.

In a situation in which Congress receives conflicting submissions of electoral votes from different institutions of state government — something that has not occurred since 1876 and that we hope remains rare — Congress should incentivize states to identify in advance which institution is entitled to speak for its voters. If the states accomplish this, Congress will only have to count electoral votes from the specified part of the state government.

A default rule could be set by Congress if a state fails to identify which section of its government will determine the popular vote. This would allow the governor to exercise the authority to decide the outcome. It could also create a tribunal nonpartisan to determine which state’s government is authoritative in determining the circumstances.

Whatever approach Congress decides to take, what is more important is that the updated statute is clear about the way the matter will be solved. At the moment of the new president’s inauguration, uncertainty invites debate.

These guidelines are sensible, and they seem to be the type of reform which might get bipartisan support. Both Senators McConnell, Thune suggested that they might consider ECA reform.

Yuval Levin, AEI, also urged policymakers in a similar vein to put more emphasis on the postelection administration. This includes ECA reform to improve transparency and accountability. New York Times.