Members of Congress are considering reforms to the Electoral Count Act of 1887 (“ECA”), found at 3 U.S.C. § 1 et seq. Electoral Count Act reform is one area where bipartisan agreement on a federal level may be possible.
Article II, Section 1 of the United States Constitution sets forth the manner in which the President and Vice President of the United States are to be elected. Consistent with the principles of federalism, the framers carefully delineated boundaries between which powers were to be delegated to the federal government and which powers would be reserved for the states. While the Constitution expressly grants states the authority to appoint the electors who will represent the state in the Electoral College, the Constitution vests in the United States Congress the authority to count the electoral votes.
Following numerous tumultuous elections throughout the nineteenth century culminating in the Hayes Tilden election of 1876, the United States Congress enacted the ECA in 1887 to standardize and clarify the process by which the President and Vice President are elected.
Although the ECA was largely successful for over a century, this changed with the 2000 presidential election. Following the hotly contested race between George W. Bush and Al Gore in 2000 in which President Bush ultimately won the election by a single electoral vote, the question of how electoral votes are counted has become a topic of debate by politicians and members of the public alike. Furthermore, most presidential elections since then have faced objections in Congress. Members of Congress from both parties have participated in objecting to vote counts from various states.
Bipartisan Support for Reform
Accordingly, the ECA has emerged as a rare area of election law where both Democrats and Republicans have expressed a desire to pass reforms. This desire for reform, while not without controversy, has only intensified following the 2020 election, which served as conclusive evidence for many election law scholars and practitioners on both sides of the aisle that the ECA is no longer capable of providing the guidance it once did.
Unlike many of the election proposals recently considered by Congress, reforming the ECA provides a unique opportunity to engage in a compromise that could support the principles of federalism since the Constitution makes it clear that the federal government is responsible for counting electoral votes.
Specific Reform Proposals
The details of any proposed revision to the ECA are important and should be analyzed closely once statutory language is released. Generally, an increased threshold for formally objecting to a state’s vote count could help preserve the credibility of objections and prevent obstruction by individual members. In addition, this could protect federalism by preventing two Members of Congress from seeking to override the decision of a state and requiring a greater number to agree before a state’s judgment is questioned.
Any reform should make clear that the Vice President’s role during the counting of votes is merely ceremonial or ministerial and without substantive authority. No federal law should endorse the receipt and tabulation of votes after Election Day, but a limited effort to update definitions to reflect modern election administration practices could be beneficial.
Any amendments to the ECA should follow these guiding principles:
- Reforms should clarify the ECA without introducing new ambiguities.
- Any reform should seek to codify traditional practice and norms, not drastically change how electoral votes are counted.
- The primary role, responsibilities, and duties of the states to administer their elections and certify their vote totals should not be infringed.
- The federal courts should not be given an expanded role in the Electoral College process.
- Report on The Electoral Count Act of 1887: Proposals for Reform (Prepared by Committee on House Administration Majority Staff for Chairperson Lofgren, January 2022)
- “Electoral Votes Regularly Given” (Law Review Article by Prof. Derek Muller, September 2021)
News Articles and Op-Eds
- Effort to overhaul archaic election law wins new momentum (The Hill, 1/21/2022)
- Senators Seek Changes to Electoral Count Act to Firm Up Presidential Elections (The Wall Street Journal, 1/20/2022)
- Here’s How We Fix the Electoral Count Act (The Bulwark, 1/19/2022)
- Electoral act reform picks up growing bipartisan support (Axios, 1/16/2022)
- Schumer: McConnell floating Electoral Count Act reforms ‘unacceptably insufficient,’ ‘offensive’ (The Hill, 1/6/2022)
- Top Senate Republican signals support for election reform (Axios, 1/5/2022)
- How Congress can fix the Electoral Count Act (The Washington Post, 1/4/2022)
- Overturning the Next Election (The Wall Street Journal, 1/4/2022)
[Last updated January 27, 2022]