How Congress can fix the Electoral Count Act

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.