The Case for Fixing the Electoral Count Act

Tomorrow is the one-year anniversary of the January 6, 2021 assault on the Capitol. Essentially the most dramatic occasion of that day, was the precise violent assault. You will need to forestall a repetition. However it’s at the least equally essential to forestall future efforts to duplicate the shenanigans that Donald Trump and a few of his supporters tried to instigate that day, by getting Congress and the Vice President to attempt to overturn the election outcomes.

That effort failed final yr, when Vice President Mike Pence and a majority of each homes of Congress refused to go together with it. However successfully precluding future such makes an attempt requires reform of the Electoral Depend Act (ECA) of 1887, the well-intentioned however ambiguous legislation governing certification of presidential election outcomes by Congress.

In current days, consultants throughout the political spectrum have highlighted the significance of this difficulty. An op ed within the Washington Post coauthored by distinguished liberal election legislation consultants Richard Pildes and Edward Foley, conservative constitutional legislation scholar and former federal choose Michael McConnell, and libertarian election legislation specialist Bradley Smith summarizes the problems concerned nicely:

We’re students of election legislation who span the ideological spectrum however agree on two elementary ideas to assist avert potential political upheaval within the aftermath of the 2024 presidential election.

First, to keep away from a repeat of Jan. 6, or worse, Congress should rewrite the Electoral Depend Act, the outmoded 1887 legislation that governs the certification of the presidential vote. There’s a urgent want for a transparent algorithm to manipulate the certification of the presidential vote.

Second, this revision must be based mostly on the premise that Congress will not be a nationwide recount board or a courtroom for litigating the end result of presidential elections. It isn’t the function of Congress to revisit a state’s standard vote tally….

To stop one other such occasion, which might be launched by both occasion in an effort to regulate the end result of a hotly contested presidential election, a revision of the Electoral Depend Act must be based mostly on the next tips:

At any time when there is only one submission of electoral votes from a state — in different phrases, no competing slates of electors — Congress ought to disavow any energy to query these electoral votes on the bottom that there was one thing improper with the favored vote upon which these electors had been appointed. So long as the state itself has settled on who gained that state via insurance policies established upfront of the election, Congress has no function apart from to just accept these as being the state’s electoral votes…

In a state of affairs wherein Congress receives conflicting submissions of electoral votes from completely different establishments of state authorities — one thing that has not occurred since 1876 and that we hope stays uncommon — Congress ought to incentivize states to establish upfront which establishment is entitled to talk for its voters. If states do that, then Congress solely has to depend the electoral votes despatched from the designated a part of the state’s authorities.

If a state has did not clarify which a part of its authorities is authoritative in figuring out the favored vote, Congress may set a default rule (awarding energy to the governor or state supreme courtroom, for instance). Or it may create upfront a nonpartisan tribunal empowered to establish which a part of state authorities has a greater authorized declare for being authoritative below the particular circumstances.

Foley, Pildes, McConnell, and Bradley hardly ever agree on a lot of something. The very fact they’ve completed so right here is, notable.

To their recommended reforms, I’d add that it could even be helpful to clarify that the Vice President doesn’t have the facility to put aside state electoral votes both. Then-VP Mike Pence rightly rejected the notion that he may do that on final yr (the concept was superior within the now-notorious John Eastman memo). However Congress ought to do all it could actually to eradicate any potential doubt on this query.

The authors of the Publish op ed are removed from the one ones advocating the reason for ECA reform. Walter Olson of the libertarian Cato Institute has been beating the identical drum for a while, as has his colleague Andy Craig. Conservative political commentator Yuval Levin revealed a New York Occasions article about it on Monday. ECA reform additionally has the backing of the conservative Wall Road Journal editorial web page.

Maybe extra importantly, at present GOP Senate Chief Mitch McConnell (to not be confused with Prof. Michael McConnell, mentioned above) and Republican whip Sen. John Thune each recommended they could be open to ECA reform, despite the fact that they oppose just about all different election reforms supported by Democrats. A few of the latter, sadly, could also be unwilling to help a separate ECA reform invoice, except it’s coupled with GOP help for varied liberal election-law measures, equivalent to curbing state voter ID legal guidelines and different registration restrictions.

McConnell and Thune could nicely have partisan political motives for his or her stance. Democratic political leaders possible have impure motivations of their very own. In terms of election legislation, few if any politicians are harmless lambs whose solely concern is the general public good. Nonetheless, fixing the ECA is a crucial reform that ought to command broad bipartisan help, even when it means separating the difficulty from different issues, and even when it requires securing the help of politicians with doubtful motives.

Addressing this downside will not repair all that ails American democracy. It won’t even forestall each potential approach to monkey round with presidential election outcomes. Nevertheless it may shut off  the obvious path by which a sufficiently ruthless occasion, answerable for each homes of Congress or the vice presidency, may attempt to overturn a presidential election and set up the loser because the winner. Foreclosing that risk is a worthy purpose, even when it is not a panacea for all of our political issues.