The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I want to call attention to an excellent op-ed in the Washington Post outlining a framework for reform of the Electoral Count Act. The Electoral Count Act is an 1887 federal statute that governs the process by which presidential electoral votes are transmitted to Congress and officially counted. It is a cumbersome statute that has long needed reform. The 2020 election has demonstrated how the statute can be exploited to steal an election, to put it bluntly, but the past few elections when Democratic legislators were calling for ballots to be cast out should have already highlighted the dangers. It is essential that Congress act now to close that door and avoid some truly ugly scenarios. The foot-dragging by Republican and Democratic leaders on this issue is unconscionable.
A bipartisan group of scholars — Ned Foley, Mike McConnell, Rick Pildes, and Brad Smith — published an op-ed laying out a good framework for reform. The key starting point is here:
To prevent another such event, which could be launched by either party in an effort to control the outcome of a hotly contested presidential election, a revision of the Electoral Count Act should be based on the following 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.
But that is just the start. Read the whole thing.