The past few days have seen a flurry of advocacy and media coverage about calls to fix the Electoral Count Act. Scholars and experts across the political spectrum have joined the push to update the 19th century statute which outlines the process for casting and counting Electoral College votes. It is this law which governs, among other things, the joint session of Congress to certify the winner of each presidential election. Understandably, that’s on everyone’s mind as we approach the first anniversary of the attack on the Capitol, the tragic and grotesque culmination of the former president’s attempts to overturn his electoral defeat.



It’s a welcome development. At Cato, we’ve been making the case that the Electoral Count Act should be at the top of the agenda, both in response to what happened in the 2020 election and to avoid a similar crisis in the future. My colleague Walter Olson has addressed it more than once, and recently I made the case for why ECA reform should garner Republican support.



Other think tanks and commentators have also been making the case. The conservative American Enterprise Institute has held forums and published reports, and David French put it bluntly in a recent piece headlined “Stop Screwing Around and Fix the Electoral Count Act.” The liberal Center for American Progress just released their own report on the threats to free and fair elections, which prominently includes ECA reform among its recommendations.



On Monday, the Wall Street Journal editorial board chimed in with a piece cataloging the practical and constitutional problems with the ECA, repeating their past calls to adopt some sort of a fix. The next day in the Washington Post, an impressive bipartisan quartet of experts, including former FEC chairman Bradley Smith, authored an op-ed making their case. Also in the Post, liberal columnist Eugene Robinson cited Cato among others in urging ECA legislation to begin making its way to Biden’s desk. 


And that’s just some of the ECA reform advocacy being published. What began as a trickle over the past twelve months is now a veritable torrent.



The New York Times reported last month that congressional Democrats are eyeing the ECA as part of the actions they might take in response to the January 6th attack, and Politico reports now that there is also increasing talk of interest on the Republican side of the aisle. On Wednesday, Senate Minority Leader Mitch McConnell seemed to confirm that, saying the ECA “obviously has some flaws. And it is worth, I think, discussing.”



This unusual outpouring of agreement reflects two things about the need to fix the Electoral Count Act. First, it is important. Nobody wants a repeat of the 2020 crisis or worse. That’s why the policy community is near-unanimous in treating it like a five-alarm fire, regardless of our disagreements on anything else. Second, there is very little substantive disagreement or partisan angle about what needs to be done. There are no hard irreconcilable conflicts about what the law should be, from any ideological perspective.



The law needs to make clear that Congress can only hear objections under narrow circumstances and with a high hurdle, by enumerating an exhaustive list of valid reasons and increasing the number of senators and representatives needed to trigger a debate. The role of the vice president should be spelled out to leave no doubt that his or her job is purely ceremonial. The finality of decisions made by the states and by the Electoral College itself must be respected, in line with the intent of the Framers and the text of the Constitution. The proper role of the courts, which are entirely absent from the ECA even though they will hear and decide most disputes long before they get to Congress, must be taken into account. The timeline of key dates could probably also use some consideration, including clarification of the “safe harbor” deadline intended to put electoral votes beyond congressional dispute.



To the degree there’s been any pushback, it has come not from supporters of Donald Trump but rather from some Democrats who are worried that ECA reform might distract from their own partisan election law bills. That worry is entirely misplaced. Passing ECA reform would have no effect on the chances of passing a party line “voting rights” bill, which is not looking very likely anyway. And whatever the merits of adopting new federal laws about voting procedures and elections administration, they matter for little if a narrow partisan majority in Congress or bad-faith actors at the state level can throw out any result they don’t like. The ECA is both more doable and, frankly, more important.



The ECA is a ticking time bomb at the heart of American democracy. Sooner or later, if left untouched, it will blow up in our faces. The consequences could be catastrophic. The routine clockwork of free and fair elections, the great American innovation of finite terms of office with the regular and peaceful transfer of power, can not be left hanging on a knife’s edge every four years. The Constitution and all it protects, individual rights and the rule of law, depend on getting this right. Limits on government power count for little if there isn’t even agreement on who is the real president, with the violent disputation such a scenario invites.



At Cato, we’re used to being skeptical of bipartisan consensus. We’re often opposed to the policies that result when both parties are in agreement. But in this case, Republicans and Democrats can provide a much-needed moment of unity by doing the right thing. Fixing the Electoral Count Act is one of the most important things Congress could do to pull us back from the cliff heading into the next presidential election. From the aftermath of one of America’s most shameful moments of partisan division and mutual distrust, Congress can earn a bit more faith in the system by fixing this pressing problem before it’s too late.