This is what reform of the Electoral Counts Act should look like

People from across the political spectrum (including a majority the voter) agree that the United States’ presidential election process is flawed. The rules designed to ensure peaceful transitions of power are unnecessarily prone to misunderstanding or worse. Events on and around January 6, 2021, including attempts to disrupt the final stages of the presidential election, have highlighted the extent to which unclear and unexamined laws can create a place for confusion and chaos. Fortunately, congressmen from both parties have recognized this problem. To solve it, they are now working on a reform of the statute, which regulates the casting and counting of the electoral votes for the president and vice president every four years.

The Electoral Count Act of 1887 (ECA) suffers from a number from now well documented Problems largely due to vague and antiquated language. But the basic intent behind the law — including the division of power and responsibility between state and federal actors — is as relevant today as it was when the law was drafted in response to the hotly contested Hayes-Tilden Act choice of 1876. After this election, competing submissions of electoral votes from several states were presented to Congress, and there were no rules or procedures to determine which votes it should count. The ECA should close this gap. But it left a number of questions either unresolved or answered through labyrinthine language. (For an explanation of the history behind the law and its ambiguities, read this explainer by the National Task Force on Election Crisis.)

as momentum As advocates for an ECA update grow, there are concerns that Congress may shy away from major reform and instead only address the law’s most obvious flaws. That would be a missed opportunity. Congress can and should respect the original purpose of the Statute (and the Constitution) while addressing dangerous weaknesses of the ECA that lead to uncertainty about the different roles that state and federal actors and the different branches of government play in this process. She can do this by addressing five key aspects of the law, about which there seems to be quite a lot consensus across the ideological spectrum.

Limiting the term “failed” elections

The ECA offers that if a state held an election but somehow “did not make an election” on election day, the state legislature may choose the manner of appointing voters on a subsequent day. (A execution this provision dates back to the Presidential Election Day Act of 1845 and thus predates the ECA. But it is now included alongside the ECA in Title 3 of the US Code and should be updated along with the ECA given the linkages between the statutes.) This provision was intended for that purpose accommodate Runoff elections and extreme weather conditions that sometimes prevented elections from being completed in a single day. It should not allow politicians to reject election results or override the will of voters. But the language is vague and, importantly, the law itself does not define what it means when an election “fails”. Accordingly, some partisan actors wrongly recommended that delays in the counting of votes or disputes over the conduct of an election may form the basis of a “failure” that would justify state legislatures appointing voters themselves after Election Day. This argument is not consistent with the history and intent behind the ECA and its other provisions.

Nonetheless, a revised ECA should define (or replace) the concept of “failure” and clarify that this provision, which essentially allows voter selection after Election Day, only applies under a narrow set of extreme circumstances, such as: B. a major, natural disaster or terrorist attack applies. And if that provision is triggered, states should at least be required to maintain their previous choices about how voters are nominated.

Set incentives and respect government regulations

The ECA can do more to ensure that timely government determinations of election results are respected in Congress. This includes recognizing state procedures for settling disputes about the outcome.

Pursuant to Article II of the Constitution and the 12th Amendment conditions Conduct presidential elections and present the results to Congress for counting. Congress’ limited role is to ensure that the input it receives from the states is authentic, as it reflects the actual outcome of those elections in accordance with state and federal laws. The ECA’s “safe haven”. determination should do this. It provides that if a state finally settles disputes under the laws in force before Election Day and does so by a specific date, the state’s final decision must be treated by Congress as “final” — meaning that Congress can make the The state’s choice cannot question results or otherwise look behind the returns. However, the statute contains no enforcement mechanism to ensure that Congress honors this promise. And vague terms in the ECA that allow Congress to dismiss election dates as not “legally confirmed” or election votes as not “regularly cast” have been misunderstood (at best) by some members of Congress to justify objections to state results.

Congress should ensure that courts can intervene if, for example, state actors leave “rogue” and pretend to confirm results that do not reflect the outcome of the election. But it’s not up to Congress second guess how states conducted their elections. A revised ECA should clarify these respective roles of states, Congress and the courts. The law was intended to provide greater incentives for states to produce timely legal certifications of their election results and to limit attempts by Congress to overrule a state’s certified election results.

Clarifying the role of the Vice President

the 12th amendment provides that nominated voters must send the President of the Senate (usually the Vice President) certificates of their votes for President and Vice President. But in relation to his role while The census, the 12th amendment, merely states that “[t]The President of the Senate, in the presence of the Senate and Chamber of Deputies, opens all the documents and then counts the votes.” The ECA will provide more detailed guidance and appoint the President of the Senate as chair when Congress meets on 6 January to count the electoral votes. The statute assigns specific duties to the chairman, such as results.

But contrary to what some have done recently tried to argue, neither the 12th Amendment nor the ECA provide for a role for the vice president – or any other chairperson – that involves making key decisions about which electoral votes are to be counted. The ECA should be updated to make it absolutely clear that the President of the Senate has a limited, largely ceremonial role in counting the electoral vote.

curbing objections

The ECA permitted objecting to the counting of a state’s electoral vote by Congress, so long as such objection is in writing and signed by a Senator and a representative. It shouldn’t be like this light for members of Congress to disrupt or undermine the counting process contradict either on the nomination of voters by a state (essentially its certified election results) or on individual electoral votes. The number of members required to file a recognizable objection should be significantly higher.

In addition, the grounds on which members of Congress may object or maintain an elector’s appointment or vote should be narrow and clear. The ECJ currently accepts objections that an appointment by voters was not “lawfully recorded” or that an electoral vote was not “cast regularly”. (Note an important difference there – the term “given regularlyapplies to the behavior of voters after their appointment and not, as members of both parties have suggested, to pre-appointment controversies about the conduct of elections.) But these terms are undefined, and the language of the law as a whole is muddled. Instead, an updated ECA should clearly state an exhaustive list of appropriate grounds for objecting to appointments or voting consistent with Congress’s role in counting—but not second opinion—state electoral votes.

With respect to the nomination of voters, grounds for objections should be limited to the authenticity of a state’s submission – as noted above, whether it reflects the actual outcome of a state’s election in accordance with state and federal laws (eg .Members of Congress). should be able to object when voters are appointed contrary to a court order) – and the constitutional eligibility of individual appointed voters. With respect to electoral votes, the grounds for objection should be limited to the validity of a vote under applicable law and constitutional requirements and to narrow circumstances in which votes are the result of bribery or other unlawful influence.

Establishment of a clear dispute resolution

The update to the ECA described above should make it unlikely that there will be a real fight in Congress over how votes are counted. But such disputes are not impossible, and there is concern that partisan actors will once again seek to exploit these weaknesses after the 2020 election exposed the law’s many weaknesses.

If all else fails, it should be absolutely clear what happens if there is a dispute within Congress about it To count of the electoral votes. When the Senate and House of Representatives disagree on whether to count one or more electoral votes, there should be no doubt as to which votes will ultimately be counted—and, in the extreme, which candidate was elected President. Whatever mechanism Congress chooses to settle such disputes, the ultimate outcome must not be obscured, as is now the case, by muddled legal language.


There are additional clarifications and improvements that Congress should consider. One is to postpone the meeting of voters and allow more time to settle disputes. Another would be to specify how a “majority” of appointed electors (a crucial constitutional threshold) is defined and calculated when some electoral votes have been discarded. However, a comprehensive update of the ECA should at least address the five key aspects of the law mentioned above. Each is a piece of the puzzle necessary for a coherent, effective whole.

Congress needs to move beyond ECA’s most obvious weaknesses and instead address comprehensive ECA reform, addressing each of these five critical issues. Current events at At home and abroad offer a stark reminder that democracy is fragile. So when the opportunity to protect American democracy presents itself, Congress should seize it.

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