Last week, the Wall Street Journal editorial board argued that the current efforts to reform the Electoral Count Act of 1887 have been fundamentally flawed. Why? Because in the board’s view, “the only real way to prevent future mischief is to repeal this unconstitutional statute.” That view is doubly wrong. Enacting a reformed and clarified Electoral Count Act (ECA) would be both the correct policy choice for avoiding election chaos and the approach most consistent with our constitutional design.

In the Constitution, the Framers wrote that the members of the electoral college must mail certificates listing their presidential votes to Congress, where the President of the Senate shall “open all the certificates, and the votes shall then be counted.” The Framers did not specify how that count would proceed, however, and the ECA attempts to fill that silence.

The ECA allows Congress to toss out and discount a purported electoral vote if both houses agree by majority vote that the purported electoral vote was either not “regularly given” or not “lawfully certified.” But the ECA does not give guidance to Congress as to what those terms mean. The current reform efforts have thus focused on making more explicit the valid grounds Congress could have to take such a drastic step.

But in the view of the editorial board, even strictly curtailing this power would not go far enough. Such a reformed ECA would still “retain some electoral-vote rejection power for Congress.” And to the board, any congressional vote-rejection power “leaves far too much room for congressional sabotage” because such a power “tells partisans that the election isn’t really over until January.”

The board’s concerns over the risk of “partisan temptation” to make “phony objections” are well taken. The desire never to allow a repeat of January 6, 2021, is at the heart of the current reform efforts. Foreclosing the theory that Congress can relitigate the conduct of the general election is a desire shared by both the editorial board and the current ECA reformers in Congress.

But the board goes too far when it argues that nothing about the purported votes received by Congress should be reviewable during the count on January 6. For better and for worse, we have a two-stage process for electing the president. The general election chooses the electors, and the electors then choose the president. Both of those stages are subject to rules that must be followed. Congress should not have the power to relitigate the general election, but Congress is the most natural body to review the acts of the electors themselves.

For example, the electors are required by the Constitution to vote on a specific day, to sign and certify their lists of votes, and to avoid voting for a president and vice president both from their own home state. In the extremely unlikely event that one of these rules is broken, it’s not clear that courts would be able to intervene before the count on January 6. The Constitution says that the lists of votes must be sent by the electors “sealed” and only opened in front of Congress, suggesting that neither a court nor anyone else is supposed to review their contents while they are in transit.

Suppose that an elector does break one of these few firm constitutional rules, as revealed when the certificate is opened before Congress. If no one at the count can discount a purported vote, then these constitutional rules would seemingly not have any enforcement mechanism. Perhaps a federal court could review whether a vote should indeed count after January 6 (and I think allowing such review would be constitutional and perhaps good policy). But the count made on January 6 itself should reflect the most likely overall count of valid votes. Making an accurate count means rejecting votes that are prima facie invalid for violating one of the Constitution’s clear rules. Having an ECA on the statute books is the best way to formalize the process for making such a count and enforcing these rules.

And this leads to the constitutional question. The editorial board argues that when Congress enacted the ECA, it “codified for itself a bigger role than the Founders intended.” Citing an earlier piece by former judge Michael Luttig and attorney David Rivkin, the board insists that there is “a strong argument that the ECA is unconstitutional.”

In fact, enacting a limited and clear procedure for Congress to reject invalid electoral votes is the approach most consistent with our constitutional design. The Framers mandated that the electoral votes must “be counted” but left open how that count should proceed. As I explain in a Cato Briefing Paper released today, the ECA is best understood as permissible congressional “gap filling,” laying out the specific procedure for that count. And it is natural and consistent with the Constitution’s directive that the procedure for making an accurate count should include a mechanism for discounting purported votes that are prima facie invalid.

In the ECA, Congress filled the Constitution’s gap by making itself the decision-making body for whether a vote is invalid. As I explain in my briefing paper, that is probably not the only permissible choice, but it is a permissible choice. The Constitution instructs that the President of the Senate (normally the vice president), the House, and the Senate must all be present at the count. Among those options, the House and Senate deciding the validity of a vote together is likely the safest option.

It may well be good policy to allow the courts to review that decision. But if no one at the count were allowed to make such a decision even preliminarily, then those present at the count would be arguably prevented from even attempting to make an accurate count.

Nonetheless, given the type of objections that have actually been made under the ECA in 2021 and prior years, the reaction and attitude of the editorial board is neither unique nor surprising. As I explain in my briefing paper, a hypothetical ECA that allowed Congress to routinely second-guess the conduct of the general election would indeed be on shaky constitutional footing, since nothing prevents the courts from resolving such questions in the first instance. That is not the ECA we have, but it is the ECA that many in Congress have acted as if we have.

In practice, most ECA objections over the years have been attempts to relitigate the general election, precisely the type of objections that the ECA was intended not to allow. We have almost never seen an objection based on the conduct of the electors themselves, and that’s to be expected given the unlikelihood of their disobeying any of the Constitution’s few simple rules.

Those who have argued that the ECA is unconstitutional, including the Journal editorial board, have understandably focused on the questionable constitutionality of congressional challenges to the general election. The text of the ECA should be amended to make indisputably clear that such challenges are not within the proper scope of the act. But the unconstitutional manner in which the ECA has been wielded in the past shouldn’t lead us to toss out the whole thing, as the board urges. Rather, it should urge us to amend and improve the act. Every branch of government has a role to play in the multi-stage process of a presidential election. A narrow and cabined decision-making role for Congress at the final count upon the unsealing of the certificates fits comfortably within that design.