With both a House version already passed by that chamber and a Senate bill advancing with strong bipartisan support, it appears likely (if by no means guaranteed) that Congress will adopt some kind of Electoral Count Act reform by the end of the year. With that, the rules governing presidential elections would see their biggest overhaul since the original ECA was adopted in 1887.



At Cato, we have written extensively on the proper constitutional interpretations and policy decisions involved in getting ECA reform right. We’ve been glad to see some of our more specific suggestions incorporated into the bills, and that the overall product so far reflects broad consensus among a cross-ideological range of experts. In an age of dysfunction and polarization, it’s been refreshing to see most members of Congress in both parties and both chambers approach the issue in a thoughtful, scholarship-driven, good faith approach to getting it right. 



Stepping back from all those nuanced technical issues to take in the big picture, ECA reform is more than just an overdue sprucing-up of some obscure rules of procedure. It represents a substantive commitment to reducing the risks of political violence and future constitutional crises.



Reforming the ECA does not, in and of itself, stop the spread of baseless conspiracy theories or prevent a losing party from rejecting the legitimacy of its defeat. That is a broader political problem to be addressed in the marketplace of ideas. What ECA reform does do is go a long way to strip election subversion of its most dangerous potential claims to legality. And when it comes to the risk of violence, enhancing the unambiguous clarity of the law can make a big difference. 



The quasi-legal theories advanced in the attempt to overturn the 2020 election were, on the whole, specious. (And so too were the congressional objections raised, albeit with much less support, by some Democrats in previous elections). They were ultimately rejected at every stage: by state legislatures, governors and secretaries of state, state and federal courts, federal executive branch agencies and departments, both houses of Congress, and the vice president. The only official support they found was among an ineffectual minority of legislators and an erratic, isolated president and his shrinking retinue of marginalized fringe figures. Most of whom held no formal government position, thanks in part to the Constitution’s prescient requirements for Senate confirmations.



But the vagueness of the Constitution’s text, the confusing ambiguities in the Electoral Count Act of 1887, and some bad accumulated precedents lent the whole effort a kind of faux-legalistic wiggle room to make arguments that weren’t entirely baseless. This ability to claim some superficial plausibility on legal questions fueled the beliefs that ultimately produced the storming of the Capitol.



In any such crisis, the outbreak of political violence is almost always related to a belief that the moral authority of the law, the real law, is on your side. Few would resort to such measures in the belief that they, and not their opponents, were the ones acting lawlessly. It depends on stripping the law of its perceived legitimacy and then wrapping that claim to legitimacy around an unlawful course of action.



Before the first windows were smashed at the Capitol, the groundwork was laid by convincing a substantial portion of the public that the constitutional process was not being followed. It was not just the underlying spurious claims of ballot fraud, but also a series of false claims about the power of various officials to change the outcome of the election. 



It was alleged that state legislatures could convene after the election to reject the popular vote results and appoint their own slate of electors. This is a fundamental misreading of the Constitution’s division of powers between the states and Congress, which allows the latter to specify a uniform “time of choosing electors,” a deadline otherwise known as election day.



But this theory about state legislatures found a foothold in 3 USC 2, the so-called “failed elections” provision. This poorly drafted section has uncertainties about what constitutes an election where there has been a “failure to make a choice,” who gets to decide an election has failed, and what a state’s legislature is authorized to do in that scenario. It was almost invoked before by the Florida legislature in 2000, lending credence to the idea that it might apply in cases of protracted post-election litigation. ECA reform would repudiate this notion by clearly stating that state law as it stood on election day is binding and can not be changed after the fact. And it would make sure this deadline extension can only be invoked under force majeure circumstances such as extreme natural disasters.



Another attempted pressure point was the idea that a state’s governor could refuse to certify the duly chosen members of the Electoral College. No governor attempted such a move, but some candidates in this year’s elections say they would have. This theory found its hook in the ECA’s reference to elector certification by “the executive” of each state, without any clearly stated remedy for how to handle a rogue executive. ECA reform would instead articulate an unambiguous constitutional duty to certify the lawful results, an expedited judicial remedy in case of refusal, and binding Congress to accept the outcome.



Even the notorious “fake electors” stunt claimed some measure of plausibility from both the text of the ECA and previous congressional practice. Rather than binding Congress to respect state and judicial determinations about who has been appointed as an elector, the 1887 ECA is largely built around the scenario of Congress entertaining conflicting sets of votes and choosing between them. Worse, the governor’s certification would act as a tiebreaker if the House and Senate disagreed. ECA reform would reject that whole model by instead ensuring only one lawful, definitive set of electors and electoral votes is presented to Congress during the joint session.



Lastly, and most crucially for the events of January 6th, were the claims that Congress and/​or the vice president have essentially unlimited authority to reject electoral votes. The theory was that Congress (or Mike Pence) could sit in judgment of how each state conducted its presidential election. This idea partly originates in an unhelpfully brief use of the passive voice in the Twelfth Amendment: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” Who counts the votes? Who decides not to count an invalid vote? It’s not the Framers of the Constitution at their best in terms of precision. 



To parse the exact scope of congressional and vice-presidential power here requires a fair amount of inferences and deducing structural implications from other parts of the Constitution. The 1887 ECA got it wrong by not clarifying how the vice president’s job is purely ceremonial, permitting objections on the basis of very broad and amorphous standards, and contradicting itself on how much deference is owed to state certifications. ECA reform would fix this by explicitly limiting the vice president to a non-discretionary ministerial role, limiting the grounds for objections to exclude issues already properly decided by the states and the courts, and increasing the number of members who must cosponsor any objections.



On all of these things, all reasonable interpretations already rejected the lawfulness of the tactics attempted by the former president and his supporters. None of the claims put forward by the likes of John Eastman, Sidney Powell, and Rudy Giuliani were correct or credible interpretations of the law as it stood even before any possible ECA reforms. The overwhelming majority of legal scholars and judges had no real doubt about that.



But by exploiting arguable ambiguities, the effort succeeded in driving a wedge into the rule of law. These ideas convinced millions of people that the certification of Biden’s win was an unconstitutional, illegitimate result, and that lawmakers had both the power and the duty to stop it. Convinced that they had the law and the Constitution on their side, thousands of those people drove Congress out of the Capitol for the first time since the War of 1812. To understand how such a deadly fiasco could have occurred requires understanding why so many people, so wrongfully, sincerely believed it was justified. This incitement exploited the willingness of Americans to “fly to the standard of the law,” twisted and perverted into an attempt to overthrow the supreme law of the land.



By passing Electoral Count Act reform with strong bipartisan support, Congress is not simply tinkering with arcane process questions. They are strengthening the rule of law by shutting down, as much as can be, possible routes for partisan malfeasance to create and exploit a fracture in popular understanding of what the law is. For future officeholders, it provides the ability to point to unambiguous language on the books with which to say “no, I can’t do that.” It clarifies how each level and branch of government has the ability to check and balance possible unconstitutional actions by the others. It puts up stronger guardrails around the separation of powers, federalism, and the Constitution’s intended design for how presidential elections are supposed to work.



Reforming the Electoral Count Act isn’t a silver bullet. It wouldn’t cure our escalating partisan divisions or stop anybody from lying to the American people about election outcomes. But it is an affirmation of the constitutional oath every public officeholder in the country is required to take. It is a forward-looking promise that our disagreements will be handled peacefully under the rule of law, not by fratricidal violence. In the words of the first president to lose an election and oversee the peaceful transfer of power to his political rivals, it’s about ensuring that we have “a government of laws and not of men.”