The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One step that could help prevent another January 6 would be to reform the Electoral Count Act, so as to remove the ability of members of Congress to question or subvert certified election results. This is the argument made in an op-ed by law professors Edward Foley, Michael McConnell, Richard Pildes, and Bradley Smith—four law professors that span the political spectrum and agree on very little.
Their argument for ECA reform is based upon two principles:
First, to avoid a repeat of Jan. 6, or worse, Congress must rewrite the Electoral Count Act, the outmoded 1887 law that governs the certification of the presidential vote. There is a pressing need for a clear set of rules to govern the certification of the presidential vote.
Second, this revision should be based on the premise that Congress is not a national recount board or a court for litigating the outcome of presidential elections. It is not the role of Congress to revisit a state's popular vote tally.
As they explain, the current ECA created an opportunity for mischief. Solid reform could make January shenanigans more difficult.
In terms of what reform should look like, the four authors offer several guidelines:
Whenever there is just one submission of electoral votes from a state — in other words, no competing slates of electors — Congress should disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed. As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state's electoral votes.
In a situation in which Congress receives conflicting submissions of electoral votes from different institutions of state government — something that has not occurred since 1876 and that we hope remains rare — Congress should incentivize states to identify in advance which institution is entitled to speak for its voters. If states do this, then Congress only has to count the electoral votes sent from the designated part of the state's government.
If a state has failed to make clear which part of its government is authoritative in determining the popular vote, Congress could set a default rule (awarding power to the governor or state supreme court, for example). Or it could create in advance a nonpartisan tribunal empowered to identify which part of state government has a better legal claim for being authoritative under the specific circumstances.
Whichever approach Congress takes is less important than that the revised statute be unambiguous about how the matter is to be resolved. Uncertainty invites contestation at precisely the most dangerous point, on the eve of inaugurating the new president.
These guidelines seem sensible to me, and appear to represent the sort of reform that might actually obtain bipartisan support. Indeed, both Senators McConnell and Thune have suggested they would consider ECA reform.
On a related note, AEI's Yuval Levin similarly urged policymakers to focus on postelection administration, including ECA reform, to increase transparency and accountability, in the New York Times.