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Opinion How Congress can fix the Electoral Count Act

Vice President Mike Pence officiates as a joint session of the House and Senate convenes to confirm the electoral college votes cast in November's election, at the Capitol in Washington, on Jan. 6, 2021. (AP Photo/J. Scott Applewhite)
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Edward B. Foley is a professor of constitutional law at Ohio State University, where he heads the university’s election law program. Michael W. McConnell, formerly a judge on the U.S. Court of Appeals for the 10th Circuit, is a professor and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. Richard H. Pildes is a professor of constitutional law at New York University School of Law who served as a member of the President’s Commission on the Supreme Court. Bradley Smith, a former chair of the Federal Election Commission, is a law professor at Capital University.

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.

This fundamental truth has been lost on both sides of the aisle since 2000. After that year’s election, and again after 2004 and 2016, some Democrats objected to electoral votes from various states on the inappropriate ground that the popular vote in those states, which served as the basis for appointing electors, had been corrupted for one reason or another.

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In each of these cases there was no doubt that the single submission of electoral votes from a state was cast by the electors that the states themselves had appointed following their own rules. (Disputes about the legality of those rules can, of course, be challenged in court). In this context, any congressional objection to what the state had sent was out of bounds.

For the 2020 election, many Republicans similarly decided it was their role to second-guess the voting process in the states. This time the consequences were far more serious.

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.

Whichever approach Congress takes is less important than that the revised statute be unambiguous about how the matter is to be resolved. Uncertainty invites contestation at precisely the most dangerous point, on the eve of inaugurating the new president.

To be sure, there is no way to fully eliminate the risk that those with the final authority to decide on a state’s electoral votes might abuse that power for partisan political objectives. At the state level, election administrators might act for partisan reasons.

But there is now substantial judicial oversight of the voting process. To the extent there remain concerns that state supreme courts might also abuse their authority for partisan reasons, federal constitutional doctrines — and federal courts — also constrain potential state court manipulation of voting laws.

By contrast, if Congress has the final say, it is virtually guaranteed that partisan political calculations will overwhelm any good-faith legal judgments. Nor are courts likely to play any role in overseeing the way Congress “counts” electoral votes.

Congress committed in the original Electoral Count Act not to second-guess a state’s vote when that state sends only a single slate of electors. In recent decades, that commitment has become dangerously frayed. Congress needs to update and clarify the act to produce a statute that does not invite abuse by its own members.

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