The time to revisit these rules is as far removed from the next election as possible, which means now.
The Electoral Count Act was adopted in the wake of the Hayes-Tilden debacle of 1876. In that election, Rutherford B. Hayes and Samuel Tilden both claimed victory in three Southern states. Hayes denounced the disenfranchisement of Black voters. Tilden objected to miscounting of the ballots. Both sides sent rival sets of electoral votes from the disputed states. Congress — with the Senate in Republican hands and the House controlled by Democrats — narrowly averted the disaster of simultaneous inauguration ceremonies only with a last-minute compromise that gave Republicans the presidency but ignominiously ended Reconstruction.
Congress feared another close call. But to say its solution was opaque is actually being too kind to the statute. I have spent much of my academic career trying to parse its meaning, and I still find it impenetrable or, at the very least, indeterminate.
A key sentence provides that if the House and Senate disagree about what electoral votes should count, “the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” That suggests the slate of electors certified by the state’s governor is the one that controls.
But that is only the start of the inquiry. What if more than one submission is certified by the state’s governor, as might be the case if the governor certifies the tally of the state’s popular vote before a lawsuit challenging that tally is decided, and then the governor certifies a different tally after the lawsuit successfully alters the outcome? Lest you think this unrealistic, it actually happened to Hawaii in 1960 — although that state’s votes didn’t affect John F. Kennedy’s electoral college victory, and Congress “without the intent to establish a precedent” decided to count Hawaii for Kennedy as well.
What if the state’s governor certifies one submission, but the secretary of state certifies a different one? Which “executive” of the state qualifies as “the executive” for the purpose of breaking a deadlock between the Senate and House? Arizona, in particular, has provoked this question because its governor and secretary of state are from opposite parties. But even Georgia, given its internecine war among Republicans, has raised a version of this issue.
What if the vice president, as chair of the special joint session of Congress that counts electoral votes, attempts to rule in favor of one of the conflicting submissions? The statute’s legislative history reveals a clear congressional intent to minimize the vice president’s role in the vote-counting process. Still, some convoluted verbiage in its text could be read as empowering the vice president to make an initial call, subject to being overruled by separate votes in both chambers.
This year, Democrats dreaded that Vice President Pence might attempt to assert this power. Next time, Vice President Kamala D. Harris — possibly running for reelection, possibly a presidential candidate herself — will chair the session. It ought to be feasible to strike a bipartisan deal that unambiguously removes any chance of vice-presidential mischief.
And while a bipartisan deal is under consideration, should a state’s “executive” (either governor or otherwise) remain the tiebreaker between a divided House and Senate? This year, the governors in four of the key battleground states were Democrats (Michigan, Nevada, Pennsylvania and Wisconsin), but that might not still be true after the 2022 midterms.
Maybe it’s possible for Congress, uncertain of the political terrain four years from now, to fashion a new form of tiebreaker that is impartial and independent of changing political fortunes in particular states.
At the very least, the new Congress should hold hearings on the topic. The need to improve the Electoral Count Act is made more urgent by this uncomfortable fact: Before 2020, one could think its procedures would be relevant only when it is genuinely indeterminate which candidate won. Now we see that Congress might be called upon to settle a presidential election whenever a defeated candidate manages to generate just enough doubt about the outcome to make a political dispute of it.