Republicans Should Help Reform the Electoral Count Act

The 2020 presidential election concluded with a political and constitutional crisis unmatched in the United States since the 1876 election. Congress should respond, as it did after 1876, by shoring up and clarifying the process for resolving presidential elections with disputed outcomes. That will require the votes of Senate Republicans, who should support reforming the Electoral Count Act as a matter of both good policy and political self-interest.

Article II of the Constitution, together with the Twelfth Amendment, sets forth a basic division of labor in electing the president. Congress picks the date for states to choose electors and must set a uniform date for the electors to cast their votes in their own states. State legislatures have plenary power to decide how the electors are selected; the legislature itself may choose the electors, but since 1876, all states have instead held a popular vote. The electoral votes are opened by the president of the Senate (the vice president, if one is in office) in the presence of the House and Senate, “and the votes shall then be counted.” But the Constitution leaves many questions unanswered.

In 1876, in the waning days of Reconstruction, multiple Southern state governments were presented with rival slates of electors, precipitating a crisis that cast a permanent pall over the legitimacy of Rutherford B. Hayes’s election. Clearer rules were needed to clarify that the slate certified by state authorities would be respected.

In 1887, Congress passed the Electoral Count Act, which was designed to clarify a further division of labor: (1) election contests are handled in the first instance by state courts and state elections officials (a process that, due to the growth of federal voting-rights laws, today includes more resort to federal courts); (2) after those contests are exhausted, the winning electors are certified by the governor of the state; (3) the vice president opens and counts the votes, but the House and Senate each vote to resolve any disputed slates of electors; and (4) if a state delivers just one slate certified by the governor by a “safe harbor” deadline, that slate is “conclusive.”