Interest continues to swirl about possible bills to reform the Electoral Count Act, with different groups of legislators in both the House and Senate and in both parties reportedly considering what changes to adopt. So it’s a good time to consider: what should a reformed Electoral Count Act look like? What is the proper role for Congress during the joint session held every four years to certify the results of the presidential election? Getting this right isn’t just an arcane procedural matter; it was also at the heart of last year’s attack on the Capitol.

The key point to consider is that the Constitution provides two basic stages for a presidential election. First, members of the Electoral College are chosen by popular election under state laws, with the states responsible for counting and certifying those results. Second, the electors meet and vote, with Congress given the role of counting and certifying the Electoral College’s votes. It is this bifurcation which provides the proper place to draw the line on Congress’s authority.

These two stages are, in effect, two separate elections with two different authorities for canvassing their respective results. After the popular votes are cast and counted, the states have their own legal processes for deciding a dispute. Those processes usually start at an administrative level with the agency in charge of elections and might include things like recounts, and then they can be appealed to the state courts for a final determination. If federal constitutional claims are raised, those can be litigated in the federal courts. In that regard, choosing electors is a state election like any other, from governor to city council. The winners of this election are not the presidential candidates themselves, but rather the individual members of the Electoral College.

The states canvass their voters to pick electors, and then Congress canvasses the Electoral College. The Framers considered and very deliberately rejected the idea of Congress electing the president and vice president. Any interpretation of Congress’s power in the joint session requires some limits to avoid fatally undermining this constitutional design. But at the other extreme, Congress’s hands can’t be tied if the electors violate clear constitutional mandates. The rational place to draw that line, and with the firmest grounding in the Constitution’s text and structure as well as historical practice, is that Congress must take the identity of the electors duly certified by the states as fact. That means it’s ultimately up to the states and the courts, before the day when the Electoral College meets and votes, to settle any dispute about who has won the state’s popular vote and thus who has been appointed as the state’s electors.

This does not mean Congress would have no role. The joint session is not quite, as some have argued, purely ceremonial, to be played out on a fully automatic script. There are constitutional rules which electors must follow in order to cast valid electoral votes that can be properly counted as “votes” at all. The certificates of votes sent to Congress must follow a specific form spelled out in the Twelfth Amendment. The electors must meet on a certain day, which the Constitution requires to be the same throughout the United States. Certain people are ineligible to be electors, and certain possible votes are invalid, such as for candidates for president and vice president who both live in the same state as the electors. These are not questions of who won the popular vote in each state and thus who the state made an elector, but rather if the electors followed the Constitution and cast valid votes which Congress should count.

The Electoral Count Act can best reflect this principle by articulating an exhaustive list of valid grounds for objections, making clear that anything else is out of order. The list of rules which must be followed can be distilled, with relative simplicity, from the text of the Constitution and the other relevant provisions in Title 3 of the U.S. Code. Doing so would not only allow greater deference to the courts in deciding election disputes; it would also be a clear statement of what is exclusively Congress’s job, if it ever is needed. And it would put the states, the courts, and the electors on clear notice about what their respective jobs are.

Such an exhaustive list would allow Congress to handle, for example, claims that electoral votes have been cast for a candidate who is constitutionally ineligible. It would cover wildly unlikely but theoretically possible scenarios like a state trying to cast more votes than it is entitled to, or an entity which is not a state trying to cast electoral votes (say, Puerto Rico or Guam or even, as once happened in 1889, a practical joker). If that sounds like a very narrow range of improbable scenarios, that’s because it is, in line with the Constitution’s design. In most cases, Congress shouldn’t have to do anything more than watch while the votes are formally counted. But there are cases where they might need to act, and those cases should be clearly enumerated.

Other improvements to the Electoral Count Act would include the most common idea, raising the threshold needed for an objection. Right now, it only takes one representative and one senator to force Congress to divide back into their separate chambers to debate and vote on an objection. That’s an invitation for grandstanding by fringe members, which is exactly how it’s been used by both Republicans and Democrats over the years. Various numbers have been proposed for a new threshold to ensure objections have some modicum of genuine support before wasting Congress’s time. One fifth of each chamber is one reasonable possibility, drawing from the Constitution’s required number to request the yeas and nays.

Moving back the date the Electoral College votes to give more time to decide election contests is also worth considering. This would give the states and the courts a bit more breathing room instead of the five to six weeks they currently have between Election Day in early November and when the Electoral College convenes in mid-December. The “safe harbor” deadline for states to certify their electors could also be set to the same day the Electoral College meets, or the day before, instead of six days before as it stands now. With modern communications, there’s no need to provide several days of slack to allow snail-mail to get to Washington, and such a move would allow an extra week without pushing up against the holidays in late December.

The provision in 3 U.S.C. § 2 authorizing state legislatures to pick electors later than Election Day in the event of a “failed” popular election should be clarified and narrowed. This rule is intended to cover extreme natural disasters and the like which disrupt the election, and to permit the use of runoff elections, and so that is what it should plainly say. It is not an authorization for state legislatures to change their mind after the fact and pick a new way of choosing electors (legislative selection) simply because they don’t like the result. If states want to let their legislators instead of their voters choose electors, they can do that, though it would be so unpopular as to be highly unlikely. But they must make that decision before “the Tuesday next after the first Monday in November,” which is Election Day. This would foreclose one of the most concerning attempts to undermine the 2020 election, when partisan pressure was placed on state legislatures to convene and overturn their state’s result. Such a move is not constitutionally valid and the ECA should make clear it has no statutory basis, either.

The Electoral Count Act as it stands is primarily intended to cover a largely obsolete scenario: two rival state governments each purporting to certify their own electors, which is what happened during Reconstruction and the notorious election of 1876. Today, that risk is much lower. Two different people cannot both claim to be the real governor of a state for very long before the courts would swiftly intervene to quash one or the other. The law should, however, be clarified on the question of which officer of a state is expected to certify the results. This would constitute a default rule in the event of multiple submissions from different state officers. The interpretation of the current provision, which refers to the “executive” of the state, has been that it means governors. But this could be changed to explicitly refer to governors, as opposed to secretaries of state or other state agencies who can also claim to be part of the state’s “executive.” Alternatively, the law could require states to designate ahead of time which of their officers will be doing the certifying, akin to an existing provision in the Help America Vote Act, passed after the 2000 election.

There is also the concern that in the worst case a state may act in defiance of a court ruling. This possibility can be covered by making one of the valid grounds for congressional objections that the electors were appointed or voted in defiance of a court order in force at the time and which has not subsequently been withdrawn or overruled. In other words, a rogue governor acting in contempt of court would not be able to submit illicit votes and force Congress to accept them. The operation of the underlying state law for choosing electors would prevail, in line with the reality that these state laws reach their final substantive determination through the courts, and state executive officers have only the purely ministerial duty of issuing the certification paperwork.

Finally, a strengthened and improved Electoral Count Act should make crystal clear that the vice president, who presides over the joint session as president of the Senate, does not have any unilateral power to influence the proceedings. In fact, the Constitution does not even technically require that the vice president preside, merely that he or she be the one to open the envelopes. Tradition and longstanding practice would let the vice president continue to ceremonially wield the gavel during the joint session, but this role entails no discretion to influence the proceedings. Mike Pence was absolutely correct to stick to this principled position under immense political pressure, but future vice presidents might not be so scrupulous.

Other ideas which have been floated include creating a new, special avenue for federal court jurisdiction. This would be redundant and constitutionally problematic. Within their proper sphere, the courts already have jurisdiction, as we have seen in how they handled lawsuits over who properly won a state’s popular vote in the 2020 and 2000 elections, among others. And within Congress’s proper sphere of enforcing Electoral College rules, their authority cannot be delegated to the courts. Attempting to do so would raise thorny problems under the Constitution’s “case or controversy” clause, including that the courts might on that basis refuse to hear the case. Federal courts cannot be tasked with issuing advisory opinions to Congress, which is what would happen in a case where Congress still has the ultimate authority under the Constitution.

Likewise, creating some sort of special commission or tribunal to decide disputes is a troubling possibility which has been suggested by some, including in a very thoughtful piece by a bipartisan group of experts in the Washington Post. Such a commission was also proposed by Sen. Ted Cruz (R‑TX) during his objection to counting votes last year. This model emulates the catastrophic fiasco of the disputed 1876 election, which is what prompted Congress to pass an Electoral Count Act in the first place. An electoral commission raises all sorts of problematic questions about who would be on it and when and how they would be chosen. And a special commission created on a mere statutory basis would lack the constitutional and democratic legitimacy that Congress has. There is a very narrow range of questions which the Constitution assigns to Congress to decide here, but on those questions, Congress can’t pass the buck.

Fixing the Electoral Count Act is urgently needed to avoid future constitutional crises. It’s likely that any version of reform proposed in Congress would be an improvement over the notoriously confusing status quo. A redrawn ECA should be grounded in the constitutional separation of powers, allowing Congress to act when it potentially needs to but otherwise closing the door to partisan malfeasance.