Recent reports indicate that, after mostly ignoring it for a year, members of Congress are moving forward with exploring possible reforms to the antiquated 19th century statute which was at the heart of the controversy over the 2020 election.
The Electoral Count Act, passed as a belated response to the disputed Hayes‐Tilden election in 1876, is the federal law which lays out the procedures for how members of the Electoral College are certified, cast their votes, and the votes are then counted. It fills in the details in the Constitution’s sparse description of how the United States elects a chief executive.
It was under this law that a majority of House Republicans, and a small minority of Senate Republicans, objected to the results of several states in the 2020 election. Under the procedure that allows any one representative together with any one senator to object to a state’s votes, the House and Senate adjourned from their joint session to consider objections to the votes of two states, Arizona and then Pennsylvania. It was during the debate over Arizona that Congress was interrupted by rioters storming the building. Another four states saw objections from House members but no senator joined them.
The Electoral Count Act is a mess of ambiguities and contradictions, as Cato’s Walter Olson has noted, among many others across the political spectrum. It’s unclear on what constitutes a proper basis for objections, offering only the maddeningly imprecise phrase “not … regularly given.” It’s vague and even contradictory on how and when states can submit their votes with finality. It doesn’t take cognizance of the role of the courts in adjudicating disputes. It’s unclear on how much, if any, discretion is given to the vice president as president of the Senate. It opens the door for Congress to effectively decide the results of an election, something the Framers specifically rejected at the Constitutional Convention. And the whole edifice arguably exceeds Congress’s constitutional powers by permitting the rejection of constitutionally valid and binding electoral votes.
In the aftermath of the 2020 fiasco, it’s understandable why Democrats would take interest in the law. The ECA has also long been subject to academic criticism from legal scholars and election experts. But even with majorities in both chambers and control of the White House, the ability of Democrats to act without bipartisan support is tightly constrained. There’s no credible argument that Electoral Count Act reform falls under the budget reconciliation process, which allows things to be passed by simple majorities in the upper chamber. In the Senate, at least ten Republicans must join with the Democrats’ slim majority to advance any substantive legislation over the procedural hurdle of a filibuster.
It would be a mistake, on both sides, to make Electoral Count Act reform into a partisan affair. It’s in the interest of both parties–and even Republicans who supported Trump’s objections in 2020–to put the process of presidential elections on a firmer foundation. Here are a few of the reasons why Republicans should embrace the cause of ECA reform:
Respecting the States and Electoral College
As Sen. Mitch McConnell noted on January 6, Republicans have usually been defenders of the Electoral College and its protections for the states. After all, two of the three Republican wins in recent elections came with a candidate who won the Electoral College while losing the national popular vote. That includes Trump’s victory in 2016. The Electoral Count Act as it stands puts the Electoral College on shaky ground, effectively subject to the whims of mere simple majorities Congress. Reforming the ECA is a key piece of protecting the Electoral College and respecting the rights of states to conduct their own elections.
Constitutional Originalism
The Electoral Count Act’s current provisions make a muddle of the Constitution’s design for presidential elections. The Framers deliberately took the selection of a president away from Congress and gave it to the states and through them, the people. It’s an essential component of checks and balances that the president isn’t elected by and doesn’t answer to Congress (except through the impeachment process with its high supermajority hurdle). It’s not clear that Congress and the vice president were intended to have any substantive role at all in counting and certifying the electoral votes. And if they do, it should be limited to only a narrow range of circumstances where the votes are facially invalid under explicit constitutional rules, such as if a state tries to cast more votes than it has, or if votes are cast for an ineligible candidate. The Framers intended to leave it up to the states to decide how their electors are chosen, including certifying the result if they choose to do it by popular election, as all states do. For constitutional conservatives as well as defenders of executive branch independence, the Electoral Count Act as it stands should be an anathema.
Democrats Have Abused It, Too, and Could Again
2020 wasn’t the first time in recent years that objections have been raised to counting electoral votes. As many Republicans noted, there was some Democratic hypocrisy here. Democrats in the House raised objections to results in 2016, 2004, and 2000: in other words, every presidential election won by Republicans this century. One of those times they found a willing Senate cosponsor, forcing the House and Senate to adjourn to their respective chambers and debate a baseless protest driven by debunked conspiracy theories (sound familiar?). Suppose that in 2024 or a subsequent election, there are Democratic majorities in Congress and a Democratic vice president, as is currently the case. Are Republicans comfortable letting their election wins depend on Democratic acquiescence?
Let the Courts Work
The Electoral Count Act recognizes no role for the courts in deciding disputes, even though courts usually take the lead on hearing and deciding lawsuits over election results. In 2020, Republican‐appointed judges and Supreme Court justices resoundingly rejected the weak legal arguments advanced by Trump’s campaign. But more credible arguments in a closer election could be made in the future. In 2000, after all, it was the Supreme Court, not Congress, that ultimately resolved the election in favor of George W. Bush. Courts are better and more natural forums for handling the intricate factual and legal disputes which can arise in a contested election. In practice, courts are able to resolve any legal disputes not only long before the process reaches Congress in January, but also before the crucial date in mid‐December when the Electoral College meets and votes. Letting the courts work and decide what they can leaves a much smaller range of potential scenarios for Congress to face.
It’s a Backdoor to the National Popular Vote
It’s likely that we’ll see another election where Republicans win the electoral college while getting fewer popular votes nationwide. Under the essentially unlimited ability of Congress to toss out votes under the ECA, Democrats could easily abuse the procedure to overturn that outcome, citing their belief that the national popular vote should be determinative. Or suppose Trump himself is the 2024 Republican nominee, which many observers see as likely, and he really does win this time. Already, arguments have been raised that the events of January 6th disqualify Trump under Section 3 of the Fourteenth Amendment, which was intended to disqualify former Confederates in the aftermath of the Civil War. It’s not a very good argument, but in combination with a popular vote loss, it could be enough for congressional Democrats to have a plausible rationale for their own subversion of an election’s outcome.
Kamala Harris Is the Vice President
In 2020, Trump and many of his legal advisors and congressional supporters embraced the argument that Mike Pence, in his role as president of the Senate, could unilaterally decide whether to count a state’s results. Pence rebuffed them, admirably insisting that his oath to the Constitution did not allow him to claim the power to decide who won the election. But next time, a Republican won’t be presiding over the count. The incumbent vice president is now, of course, Kamala Harris. Especially with the likelihood that Republicans will retake one or both houses by then, Harris might end up under immense pressure to do what Pence would not. Her position might be the only way Democrats can affect the outcome in Congress. Without clear language in the Electoral Count Act to prevent it, a Democratic vice president could just as easily claim the power to reject votes, no matter how thin their argument is for doing so.
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There’s already a broad consensus about what needs to be done to fix the Electoral Count Act. Ambiguities should be clarified. The grounds on which Congress can reject votes should be narrowly constrained. The role of the vice president should be made clear. States should have fair notice of what they’re expected to do and how they can make their electoral votes beyond reproach. The proper role of the courts should be taken into consideration. The thresholds for objections to be made, and/or for Congress to accept objections, should be raised so that bipartisan agreement is necessary. Credible constitutional objections to the ECA should be resolved. There are details that need to be decided on all these things, but none of them should be fatal to crafting a proposal members of both parties can endorse.
It’s important for Democrats to recognize they need Republican votes here, and act accordingly. ECA reform should be a standalone bill, not tied to other, more controversial changes to voting laws which Republicans have already made clear they don’t support. Reports that proposals for ECA reform will come out of the House’s January 6th Committee are especially worrying. While it might make some sense in that the ECA played a major role in January’s tragic events, the committee is already seen as a partisan affair. ECA reform should instead be negotiated and introduced with bipartisan sponsors, since Republicans are very unlikely to endorse anything coming from a committee populated solely by Nancy Pelosi’s appointees.
Republicans should see there are both good, principled reasons to support ECA reform as well as strong reasons of partisan self‐interest. The status quo serves neither party. The necessity of obtaining Republican votes for ECA reform will also let them nix any changes they find unacceptable, but only if they’re at the table.
We shouldn’t be facing a constitutional crisis every four years, and Republicans are as likely as Democrats to eventually be on the losing side of such a dispute. Reforming the Electoral Count Act should be a rare case in today’s Washington where both parties can find agreement and come together to avert the next crisis before it begins.
