A Rare Bipartisan Opportunity to Reform the Electoral Count Act

electoral count act
The U.S. Capitol, behind security fencing, on January 10, 2021 in Washington, DC. A pro-Trump mob stormed and desecrated the U.S. Capitol on January 6 as Congress held a joint session to ratify President-elect Joe Biden's 306-232 Electoral College win over President Donald Trump. (Photo by Al Drago/Getty Images)

July 28, 2022

Democrats and Republicans have a rare opportunity to reform the Electoral Count Act of 1887 for the betterment of our republic. Angry mobs of any sort, whether they threaten the Congress of the United States or countless cities during the Black Lives Matter protests of 2020, are antithetical to the American constitutional order: a republic of laws, not men.

The framers of our Constitution sought to create a decentralized system for electing the president and vice-president. Such a system would have to stand the test of despotism originating from two main sources. The first likely source is what Alexis de Tocqueville called in his Democracy in America (1835-1840, Two Volumes) the “overbearing majority.” Before the United States, a republic had never been attempted at such a large scale. The framers understood the despotism from an unfettered national majority.

But the framers were also concerned about balancing the power of the central government. They understood all too well, having been newly separated from Great Britain, the horrors of monarchical despotism. And so, the framers decided that the new federal government would have very little power in the presidential election at all.

Instead, the several states would choose a number of electors equal to the whole number of representatives and senators they were entitled to in Congress. Since the election of 1789, where the electors met in their respective states for the first time and cast their ballots for president of the United States, the Electoral College has endured, mitigating the possibility of despotism, whether it be from a national majority or a clumsily centralized federal bureaucracy of elections.

The system has changed since its inception. The Twelfth Amendment scrapped the Electoral College’s original runner-up system, in which the person garnering the second most electoral votes would become the vice-president, regardless of political party. Now, each elector casts two ballots: one for president and one for vice-president, and each must garner a majority (instead of a mere plurality) to be duly elected. This enabled presidential candidates to choose running mates, therefore alleviating the problems experienced by administrations in the early republic. President John Adams and Vice-President Thomas Jefferson, a Federalist and Democratic-Republican, come to mind. 

Furthermore, unlike the early days of the republic, more people within the several states began to vote for their preferred political party’s slate of electors. This is how we do it today, and the Electoral College ought to be championed for facilitating a nation of 50 popular votes instead of one, the only true expression of a democratic consensus in a commonwealth of semi-autonomous states. And after all the voting is concluded, the electoral vote certificates of each state are sent to Washington, D.C., in which the vice-president counts the final tabulation of the Electoral College in the presence of the Senate and House of Representatives.

The story of January 6th is indeed a complex and multifaceted one. From rioters being tracked down by the FBI to speculation that Donald Trump himself was involved in the riot, the virulent debates on this subject are sure to rock the American political landscape for years to come.

But beyond all the political theater and congressional hearings is the broader constitutional question that some Trump supporters attempted to answer on January 6th: can the vice-president of the United States unilaterally approve or reject electors from the states? The answer to this is most certainly a resounding no, even though some conservative pundits wrongfully claimed such was the case.

Luckily, the Electoral Count Reform Act provides the necessary (and correct) clarification, stating that the vice-president’s powers regarding the counting of the electoral votes are strictly “ministerial in nature.” §15.b.2, titled “Powers Explicitly Denied,” states that “The President of the Senate [the vice-president] shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”

A much-needed clarification of the vice-president’s powers on January 6th, particularly the one offered in this bill, is crucial to vindicating the intended purpose of the Electoral College: to diffuse power away from Washington, maintaining the broad deference to the several states. What is the point of a quadrennial temporary body of state-appointed electors, having assembled in consequence of their duties to elect the chief magistrate of our republic, if the current vice-president can unilaterally reject said electors? Surely the framers understood a vice-president’s vested interest in maintaining the power of his own administration in spite of the tabulation of the Electoral College, so much so that perhaps they didn’t feel the need to explicitly clarify it. Evidently, the framers weren’t clear enough.

In addition to the limitation on the powers of the vice-president on January 6th is the Electoral Count Reform Act’s makeover of the original objection procedures. Under this bill, no longer would you merely need one representative and one senator to formally object to a state’s slate of electors. Instead, you would now need one fifth (or 20%) of each chamber to sign a written objection to any individual state’s slate of electors. 

This measure would clearly incentivize Congress to consider objections to a presidential election more prudently. Should the Electoral Count Reform Act be passed and signed into law, no longer would we see shenanigans like the ones congressional Democrats pulled on January 6th, 2001, 2005, and 2017, when attempting to dispute the results that handed George W. Bush and Donald Trump their respective election victories. And of course, Republicans would be prevented from doing the same thing, as they did on January 6th, 2021. 

Requiring a concurrence from 20% of each chamber incentivizes both Democrats and Republicans to actually convince their fellow colleagues in objecting to an already state-certified Electoral College tabulation, as opposed to fringe efforts made by small handfuls of overzealous lawmakers.

The Electoral Count Reform Act also specifically designates, unless a state’s constitution says otherwise, the governor of each state as responsible for submitting their slate of electors to Congress. This would clear up the issue of multiple branches of state governments, or multiple state officials, sending competing slates of electors. 

The Electoral Count Reform Act also allows for an expedited judicial review, should a dispute concerning the electors be made. Specifically, the bill calls for a three-judge panel to hear objections to a state’s slate of electors, with a direct appeal to the Supreme Court. This would streamline the necessary legal processes that would need to follow should the results in a particular state be disputed.

Of course, this is only the Senate’s proposal, and the final draft of the bill could change depending on how negotiations go in the House of Representatives. Nevertheless, changes to the Electoral Count Act of 1877 are clearly needed, and the bipartisan effort in the Senate to deliver such changes represent a rare opportunity for both Republicans and Democrats to come together in the maintenance of our republic. If Republicans are looking to make themselves appear more favorable to voters, especially in the wake of their widespread rejection of the Respect for Marriage Act, this would be a great opportunity to do so.

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