So how do we fix the Electoral Count Act?
In theory, because future electoral vote counts are uncertain and no one knows which party might benefit from any particular change, reaching a bipartisan consensus on ECA reform should be easy.
In practice, it is not. Between 1873 and 1886, the Senate passed five separate electoral count bills and one joint rule—only to have them die in the House. In today’s political climate, ECA reform may well be impossible without unified control of Congress, and probably the presidency, because . . . I can’t find a sensible way to complete that sentence. But nevertheless, it is true.
Most ECA reform proposals fix specific problems but leave the overall structure intact.
For example, there’s general agreement that the ECA should be amended to make it crystal clear that the vice president’s role is entirely ministerial. Some of the more ambitious proposals would specify that someone other than the vice president—perhaps the president pro tempore of the Senate—would preside over the joint session of Congress that counts electoral votes. That’s because about half the time, forcing the vice president to preside over the electoral vote count creates an almost-comical conflict of interest. Not every vice president, when faced with such temptation, will show the moral fortitude of Mike Pence and it is both unfair and unwise to ask it of them.
Virtually every reform proposal suggests making it more difficult to challenge a state’s electoral votes, usually by increasing the number of senators and representatives required to lodge an objection. Under the current ECA, just one senator and one representative can challenge a state’s electoral votes and disrupt the counting process. Given the popularity of virtue-signaling in our current political climate, this is a recipe for, at best, pointless delay. And at worst, for a constitutional crisis.
A number of proposals suggest strengthening the safe-harbor provision that applies when a state returns a single set of electoral votes. While this is probably a good idea, it would be of limited effectiveness. Even now, electoral votes can only, at least theoretically, be challenged for specific reasons. But if Congress does choose to throw out a state’s votes—for instance, because it deems that the votes were not “regularly given”—its decision is unreviewable. In other words, as long as Congress mouths the correct formula, it can reject electoral votes for any reason that strikes a majority of its members’ fancy.
None of these reforms gets to the real root of the issue: That in the 19th century, counting electoral votes was ultimately a political exercise and in the 21st century it is not.
In today’s America, we handle disputes about the conduct of an election through the legal system. Courts have become extremely adept at resolving complex election issues, both in the months leading up to the vote and in the weeks between the vote and its certification. When the courts do reach resolutions, they leave behind them meticulous records documenting the dispute, as well as a detailed analysis of both the facts and the law.
Which means that today, by the time any genuine dispute about a presidential election or appointing electors reaches Congress, it will have been fully litigated and almost certainly fully resolved, at least from a legal perspective.
And—here is the key precept—we do not want politicians to substitute their partisan loyalties for the judgment of a court. Allowing politicians to replace lawful election results with political decisions is democratic blasphemy and contrary to our modern conception of the rule of law.
All this means that the Electoral Count Act of 2022 ought to look much different from the Electoral Count Act of 1887. And since we reject the 1887 act’s fundamental premise—that politicians should be the final arbiter of presidential election results—reform ought to do more than tinker at the margins of the law.
Some of the precepts for reform are clear:
- It should be more difficult to object to a state’s electoral votes.
- The vice president should have no discretionary authority when it comes to counting votes.
- We need a rule making it clear how many electoral votes are required to win the presidency if a state’s electoral votes are rejected.
But most fundamentally, we need to address the core of the ECA itself: How are disputes about electoral votes decided?
We can still draw on the wisdom and experience of the past. Remember how back in 1877 Congress created an ad hoc electoral commission vested with the “same powers, if any” that Congress itself had, to accept or reject disputed electoral votes?
The Electoral Count Act of 2022 should expand on that idea and make it permanent. In the event of a dispute, a Special Electoral Commission would be created and the commission would consist of the current membership of the Supreme Court. If the current membership consists of an even number of justices, an additional member would be selected by lot from retired justices who have served on a circuit court panel in the last year. Should none be available, the final member would be selected by lot from active senior judges on the D.C. Circuit Court of Appeals.
This commission would be empowered to make binding decisions on all electoral count objections and members would not be allowed to recuse themselves on the grounds that they had previously heard a case regarding the dispute. In fact, that would sort of be the point. If the Supreme Court has already heard the dispute, we would not want the electoral commission to reach a different result.
If the Supreme Court had not heard the dispute, it would still have the benefit of the record created by litigation in the lower courts. And reviewing such a record and reaching a well-reasoned decision is something that the Supreme Court, unlike Congress, excels at, even when it is convened as an electoral commission instead of a court.
Finally, the commission would be required to resolve all disputes by a specified date. Once the disputes were resolved, the joint session of Congress would reconvene to receive the results, complete the vote count, and declare a winner.
There are good reasons for us to place our trust in the Court even though our 19th century predecessors did not. Judges, even Supreme Court justices, are far more nonpartisan today than they were then. And while they may be “conservative” or “liberal,” these are judicial philosophies and they do not map neatly to their political counterparts.
The Supreme Court is also far better at reaching principled consensus than Congress is. While it’s the 5-4 decisions that get all the press, since 2000, about 80 percent of all Supreme Court cases have been decided by margins of 6-3, or better. More than a third of all decisions have been unanimous. And these decisions are being made in the most complex and contentious cases in America. Even the central question in Bush v. Gore was decided by a 7-2 vote.
Someone has to settle these disputes and keep our constitutional system of government on an even keel even in choppy waters. It’s clear that Congress is too fractious and political for the task. On top of that, making electoral dispute resolution legalistic, detailed, and a little bit boring should go a long way towards minimizing the number of electoral disputes in the future. There is far less incentive to create a crisis when you know you won’t be able to manipulate it to your advantage.
Properly crafted, an Electoral Count Act of 2022 wouldn’t just deliver us from evil, it would also lead us not into temptation.
The Electoral Count Act of 1867 is a ticking bomb. Now that its vulnerabilities have been exposed, it is only a matter of time before someone uses it to overturn an American presidential election and with it, American democracy. Even an unsuccessful attempt would be disastrous.
And time is running out. The last clear chance to reform the ECA expires with the current congress on January 3rd, 2023.
So reform is a matter of urgency. And yet, the White House is actively hostile to fixing the Electoral Count Act, viewing it as a “distraction” from its new focus on voting rights, and Congress has still not introduced—much less debated—a single reform proposal.
That’s a horrible mistake.
And if it’s not corrected, one we will all too soon live to regret.