Five Facts on Reforming the Electoral Count Act of 1887

The Big InsightIt’s the single most important election reform that no one was talking about… until now.

Senators from both parties are considering reforms to the Electoral Count Act of 1887, the ambiguous federal law that many believe lit the match for the January 6, 2021 riot in Washington, D.C. Capitol.

Here are five facts on the Act and on how it could be reformed.

1.         The Electoral Count Act of 1887 was adopted in response to the contested presidential election of 1876, in which several states submitted competing slates of electors. It was intended to clarify rules for determining which slates to count.

Historians Erik B. Alexander and Rachel Shelden argued in the Washington Post last fall that the Electoral Count Act “was a short-term political fix, grounded, in large part, in the disenfranchisement and racism that had produced the 1876 crisis in the first place.” They say the law “wasn’t designed to handle” attempts by officials “to wrest power from nonpartisan election boards in a bid to control future elections.”

2.         Both parties have raised objections to electoral vote slates in recent years.

The Act permits objections to the certification of any state’s electors if raised by one member of both the Senate and House. While some House Democrats attempted to object in the counting of votes in both 2000 and 2016 – when their nominee lost the electoral vote but won the popular vote – they were unable to get a senator to agree. In January 2005, Democrats did formally object to the 2004 Ohio slate of electors, briefly delaying the certification of George W. Bush’s victory. In January 2021, Republicans formally objected to the slates from Arizona and Pennsylvania.

3.         Some scholars believe the Electoral Count Act is unconstitutional.

The original U.S. Constitution leaves the selection of the president and vice president in the hands of the states through the Electoral College. Some scholars say giving Congress any role in certifying the results of the election beyond a purely ceremonial one violates the separation of powers. Political scientist Vasan Kesavan has argued in the North Carolina Law Review that “if the joint convention [of Congress] could judge electoral votes, it could reject enough votes to thwart the electors’ will or trigger a contingency election for President in the House of Representatives and for Vice President in the Senate, thereby arrogating to the two Houses of Congress the power to appoint the Nation's two highest executive officers.” Jack Beermann and Gary Lawson of the Boston University School of Law wrote last year that “the Constitution does not assign to Congress any role in the process of ascertaining the winner in the tally of electoral votes.”

4.         Election law experts from across the political spectrum have endorsed reform.

In a Washington Post op-ed earlier this month, a group that Politico called a “left-right group of four well-known election law experts” backed reform. The authors say they “span the ideological spectrum” and believe that “Congress must rewrite the Electoral Count Act, the outmoded 1887 law that governs the certification of the presidential vote. … It is not the role of Congress to revisit a state’s popular vote tally.” Liberal publications like the New Republic and conservative ones like National Review have also called for reform.

5.         Senators from both parties have expressed openness to reforming the Act.

A bipartisan group of senators including a defeated Republican presidential nominee and a defeated Democratic vice-presidential nominee met this month via Zoom to discuss reforming the law. Sens. Susan Collins (R-ME), Steve Daines (R-MT), Ron Johnson (R-WI), Tim Kaine (D-VA), Joe Manchin (D-WV), Mitt Romney (R-UT), Jeanne Shaheen (D-NH), Kyrsten Sinema (D-AZ), Thom Tillis (R-NC), and Roger Wicker (R-MS) took part. Senate Minority Leader Mitch McConnell and Senate Minority Whip John Thune have also expressed openness, with McConnell saying, “It obviously has some flaws. And it is worth, I think, discussing.”

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