If the past is any indication, Americans will go on for years debating whether the method prescribed by the U.S. Constitution for selecting presidents, the Electoral College, should give way to some version of a national popular vote. (Cato scholars have long criticized one such attempted version, the National Popular Vote Interstate Compact.)
For those who wish the Electoral College well as an institution, the best prospect for keeping it intact is for it to work smoothly, predictably, and as intended by the Framers, the voters, and the responsible officials in the states. And that’s among the best reasons to want to update and clarify the creaky Electoral Count Act of 1887, as Congress is currently doing.
Thus argues Sen. Rand Paul (R‑Ky.) in a cogent opinion piece in the Louisville Courier‐Journal. Sen. Paul notes that the College’s remarkable institutional survival has benefited from a willingness to tinker and improve at the margins from time to time. “For example, the 12th Amendment provided for separate electoral votes for President and Vice President, a solution required after the controversial elections of 1796 and 1800.” The timing of the process, one might add, has also undergone repeated revision, reflecting among other factors advances in communication and transportation speeds.
Unfortunately, as Sen. Paul explains, as time went on, defects in tabulation procedures spelled out by Congress 135 years ago left ambiguities ripe for exploitation by both parties. That includes the role of the Vice President in counting electoral votes and the “incredibly low threshold – just one member of the House and Senate – [needed] to object to a state’s election results.” From “political theater,” these games descended to something worse on Jan. 6, 2021. It should be noted that Sen. Paul refused to join eight Senate colleagues who voted against certifying electors that day, explaining in a tweet at the time, “The vote today is not a protest; the vote today is literally to overturn the election! Voting to overturn state‐certified elections would be the opposite of what states’ rights Republicans have always advocated for.”
That’s a crucial and underappreciated point: ECA revision, at least in its current Congressional form, has proven to be originalist and federalist in spirit, aiming to protect states in their rightful role against usurpation as well as to protect voters from machinations that would set aside their choices. As Sen. Paul writes, “this legislation preserves the Founders’ intent that the laws and election results of the several states are respected.” And as a matter of political realism, “conservatives should realize that reforming the Electoral Count Act is necessary to protect the Electoral College” from those who would seize on a failure in its procedures as reason to abandon it entirely.
Exactly so.
