A Breakthrough on Reforming the Electoral Count Act

 

Earlier this week, a bipartisan group of 16 senators put forward a bill intended to fix the Electoral Count Act, the archaic 1887 law whose ambiguities Donald Trump and others sought to exploit in order to overturn the results of the 2020 election. The bill has a good chance of getting through Congress. If it does, it would go a long way to fixing the flaws in the ECA.

In a recent post, building on the work of Andy Craig of the Cato Institute, I summarized the three main goals ECA reform should achieve:

1. Preventing state governments from, in effect, changing the rules after election day, in order to reverse election results they don’t like.

2. Preventing Congress from throwing out electoral votes for bogus reasons (as some GOP members of Congress sought to do after the 2020 election).

3. Making it more clear that the Vice-President does not have the power to invalidate electoral votes (a step then-VP Mike Pence rightly refused to take in January 2021, despite the urging of Donald Trump).

The bipartisan proposal would be a big step forward on all three points. That’s why it has attracted broad, cross-ideological support from experts in the field. In a recent post at the Election Law blog,  prominent election law and constitutional law scholars Ned Foley, Michael McConnell, Derek Muller, Rick Pildes, and Brad Smith, summarize the bill’s strengths and urge Congress to swiftly pass it:

Here are the main features of the draft, which are a vast improvement on the existing Act from 1887. These features appropriately respond to the need to update the Act to protect the integrity of future presidential elections.

First, and most importantly, in its revisions to the current provisions of U.S. Code, the draft bill reflects the philosophy that disputes over which presidential candidate won the popular vote in a state should be settled according to that state’s law, adopted in advance of the popular vote, subject, as required by the Constitution, to the supremacy of applicable federal law. As revised by the draft bill, 3 U.S.C. § 1 would now read: “The electors of President and Vice President shall be appointed, in each State, on election day, in acc