The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tomorrow is the one-year anniversary of the January 6, 2021 attack on the Capitol. The most dramatic event of that day, was the actual violent assault. It is important to prevent a repetition. But it is at least equally important to forestall future efforts to replicate the shenanigans that Donald Trump and some of his supporters tried to instigate that day, by getting Congress and the Vice President to try to overturn the election results.
That effort failed last year, when Vice President Mike Pence and a majority of both houses of Congress refused to go along with it. But effectively precluding future such attempts requires reform of the Electoral Count Act (ECA) of 1887, the well-intentioned but ambiguous law governing certification of presidential election results by Congress.
In recent days, experts across the political spectrum have highlighted the importance of this issue. An op ed in the Washington Post coauthored by prominent liberal election law experts Richard Pildes and Edward Foley, conservative constitutional law scholar and former federal judge Michael McConnell, and libertarian election law specialist Bradley Smith summarizes the issues involved well:
We are scholars of election law who span the ideological spectrum but agree on two fundamental principles to help avert potential political upheaval in the aftermath of the 2024 presidential election.
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….
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…
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.
Foley, Pildes, McConnell, and Bradley rarely agree on much of anything. The fact they have done so here is, notable.
To their suggested reforms, I would add that it would also be useful to make clear that the Vice President does not have the power to set aside state electoral votes either. Then-VP Mike Pence rightly rejected the notion that he could do this on last year (the idea was advanced in the now-notorious John Eastman memo). But Congress should do all it can to eliminate any possible doubt on this question.
The authors of the Post op ed are far from the only ones advocating the cause of ECA reform. Walter Olson of the libertarian Cato Institute has been beating the same drum for some time, as has his colleague Andy Craig. Conservative political commentator Yuval Levin published a New York Times article about it on Monday. ECA reform also has the backing of the conservative Wall Street Journal editorial page.
Perhaps more importantly, today GOP Senate Leader Mitch McConnell (not to be confused with Prof. Michael McConnell, discussed above) and Republican whip Sen. John Thune both suggested they may be open to ECA reform, even though they oppose virtually all other election reforms supported by Democrats. Some of the latter, unfortunately, may be unwilling to support a separate ECA reform bill, unless it is coupled with GOP support for various liberal election-law measures, such as curbing state voter ID laws and other registration restrictions.
McConnell and Thune may well have partisan political motives for their stance. Democratic political leaders likely have impure motivations of their own. When it comes to election law, few if any politicians are innocent lambs whose only concern is the public good. Nonetheless, fixing the ECA is an important reform that should command broad bipartisan support, even if it means separating the issue from other matters, and even if it requires securing the support of politicians with dubious motives.
Addressing this problem won't fix all that ails American democracy. It will not even forestall every possible way to monkey around with presidential election results. But it could close off the most obvious path by which a sufficiently ruthless party, in control of both houses of Congress or the vice presidency, could try to overturn a presidential election and install the loser as the winner. Foreclosing that possibility is a worthy goal, even if it isn't a panacea for all of our political problems.
UPDATE: I put up this post before noticing that co-bloggers Keith Whittington and Jonathan Adler have also highlighted the Washington Post op ed. My post above goes beyond theirs by noting other influential supporters of ECA reform, and making some additional points (including about the role of the Vice President).
UPDATE #2: Andy Craig of the Cato Institute, whose work on this issue I mentioned above, has just published a new piece entitled "Bipartisan Momentum Builds for Fixing the Electoral Count Act." He summarizes additional support for ECA reform from a variety of sources, including the following:
The conservative American Enterprise Institute has held forums and published reports, and David French put it bluntly in a recent piece headlined "Stop Screwing Around and Fix the Electoral Count Act." The liberal Center for American Progress just released their own report on the threats to free and fair elections, which prominently includes ECA reform among its recommendations.
On Monday, the Wall Street Journal editorial board chimed in with a piece cataloging the practical and constitutional problems with the ECA, repeating their past calls to adopt some sort of a fix. The next day in the Washington Post, an impressive bipartisan quartet of experts, including former FEC chairman Bradley Smith, authored an op‐ed making their case. Also in the Post, liberal columnist Eugene Robinson cited Cato among others in urging ECA legislation to begin making its way to Biden's desk.