Observation: Revalidating the Electoral Count Act

The established framework for counting electoral votes is consistent with the Constitution, but Congress needs to update it.

Vice President Mike Pence presiding over the electoral count at the joint meeting of Congress on January 6, 2021—Photo by Saul Loeb via AP Pool

When hun­dreds of pro­testers pushed through the barri­cades and entered the Capi­tol Build­ing on Jan­u­ary 6, 2021, the objec­tive for many was to pre­vent Con­gress from count­ing the States’ cer­ti­fied elec­toral votes and declaring the win­ner of the 2020 Presi­den­tial elec­tion in accord­ance with the Con­sti­tu­tion—the last for­mal step in the elec­toral proc­ess for the peace­ful trans­fer of Presi­den­tial power in the United States.

For the first time in the his­tory of our Nation, Congress’s elec­toral count was stopped for sev­eral hours until the Build­ing was cleared of tres­pas­sers and secured.

Less than two hours before the Capi­tol was breached, down the Mall at the Ellipse, Presi­dent Trump had addressed a rally of sup­porters. He urged them to march up to the Capi­tol to call upon Vice Presi­dent Mike Pence to “do the right thing.”

As the Presi­dent explained to the crowd, he wanted the Vice Presi­dent, who was pre­siding over the joint meet­ing of Con­gress, to refuse to count the elec­toral votes from cer­tain swing States and instead to send the votes back to State offi­cials for recon­sider­a­tion in light of concerns that anomalies in electoral procedures had marred those States’ pop­u­lar elec­tion results.

In so urging, the Presi­dent relied on legal argu­ments pro­pounded by two of his pri­vate attorneys who also spoke to the crowd at the Ellipse on Jan­u­ary 6. The Presi­dent’s pri­vate law­yers made two closely related con­sti­tu­tional claims:

First, they argued that the Con­sti­tu­tion empow­ers the Vice Presi­dent, act­ing uni­lat­erally in his capac­ity as Presi­dent of the Senate, to reject or balk at count­ing dis­puted elec­toral votes.

And second, they argued that the Elec­toral Count Act of 1887, which gov­erns the proc­ess for count­ing elec­toral votes, is uncon­sti­tu­tional on its face because it pro­vides that the Senate and the House of Repre­sen­ta­tives, acting by con­cur­rent votes of the two Houses, resolve dis­putes over the count.

The first con­ten­tion was rejected by Vice Presi­dent Pence on Jan­u­ary 6, 2021, while the second con­tinues to be echoed by some respected scholars and com­men­ta­tors.

Neither claim holds up.

The analysis can be laid out in three steps—

First, the Con­sti­tu­tion gives the Senate and the House, not the Vice Presi­dent, respon­si­bility for count­ing the votes of the Presi­den­tial elec­tors.

Under our Con­sti­tu­tion, the States appoint their elec­tors in a man­ner deter­mined by each State’s Legis­la­ture—and since 1880, all States have chosen to do so by hold­ing pop­u­lar elec­tions. Con­gress decides the timing for the appoint­ment of the elec­tors (that’s Elec­tion Day) and sets the date (cur­rently 41 days later) when the appointed elec­tors meet to cast their bal­lots. The elec­tors pre­pare a list show­ing how they’ve voted, sign the list and cer­tify that it’s true and correct, and send the cer­ti­fied list in a sealed enve­lope to the Presi­dent of the Senate (that’s the sitting Vice Presi­dent) for safe­keep­ing.

On the sixth of Jan­u­ary after Elec­tion Day, the two Houses of Con­gress assem­ble in a joint meet­ing to con­duct the elec­toral count. The Count­ing Clause of the Con­sti­tu­tion pro­vides that the Vice Presi­dent is to open all the sealed enve­lopes “in the pres­ence of” the Senate and the House “and the votes shall then be counted.”

The use of the pas­sive voice is tell­ing. If the Framers had wanted the Vice Presi­dent alone to do the count­ing, the Clause would have ended, “and he shall then count the votes.” Instead, the Vice Presi­dent is given only the cere­monial duty of open­ing the enve­lopes and pre­sent­ing the cer­ti­fied lists to Con­gress for count­ing.

Because the Vice Presi­dent is the Presi­dent of the Senate, Con­gress may assign him the addi­tional func­tion of serving as pre­siding officer at the joint meet­ing, but that’s not required by the Con­sti­tu­tion. Indeed, the Con­sti­tu­tion per­mits the Vice Presi­dent to cast a vote on any matter before Con­gress only when the Senate is equally divided.

We know the Senate and the House are in charge of the joint meet­ing, and their Mem­bers are not mere onlookers, because the phrase “in the pres­ence of” clearly indi­cates that the two Houses, as bodies, are offi­cially in ses­sion and ready to con­duct busi­ness; other­wise, they wouldn’t be “pres­ent” as the Senate and House when the cer­ti­fied lists are unsealed.

They have to be in ses­sion, more­over, because the Con­sti­tu­tion says that if no candi­date receives the required major­ity in the elec­toral count, the House of Repre­sen­ta­tives shall “imme­diately” choose the Presi­dent by bal­lot, voting by State with the House dele­ga­tion from each State having one vote. And, if neces­sary, the Senate then chooses the Vice Presi­dent.

The Framers used the pas­sive phrasing in refer­ence to the count because they didn’t pre­sume to dic­tate to the Senate and House how the count­ing is to hap­pen and who specif­ically must tally the votes on their behalf. After all, it’s not practical for a major­ity of the Mem­bers per­sonally to inspect the cer­ti­fied lists and tally the votes.

This read­ing is con­firmed by 230 years of con­sistent prac­tice in Con­gress.

Start­ing with the first elec­tion of George Wash­ing­ton in 1789 and for every Presi­den­tial election since, each House has desig­nated Mem­bers to serve as “tellers” who “ascer­tain” and tally the elec­toral votes on behalf of their respec­tive Houses. As auth­or­ized agents, the tellers act with the con­sent and sub­ject to the super­vision of the Senate or the House.

While the full his­tory of Con­gres­sional prac­tice is rele­vant, the prac­tice fol­lowed between 1789 and 1803 carries special weight when inter­pre­ting the Count­ing Clause, since the Clause was part of the orig­i­nal Con­sti­tu­tion and was carried over with no sig­nif­i­cant revi­sion in the Twelfth Amend­ment. The fact that the same lan­guage was retained with­out elab­or­a­tion shows that the drafters of the Amend­ment and the Con­gress that approved it in Decem­ber 1803 were con­tent with how the Clause had been under­stood and applied before then.

Second, the respon­si­bility to count elec­toral votes neces­sarily includes auth­or­ity to decide which votes to count when gen­u­ine issues arise.

This con­clu­sion is com­pelled by logic and com­mon­sense, as well as by his­tor­i­cal prac­tice.

Con­gress has to be able to con­firm the iden­tities of each State’s duly appointed elec­tors before accept­ing and count­ing the State’s elec­toral votes. Other­wise, it might mis­takenly credit votes cast by indi­vid­uals who aren’t eli­gible to serve as elec­tors (because they’re officers of the Fed­eral Gov­ern­ment) or who weren’t appointed in the man­ner pre­scribed by the State’s Legis­la­ture (for example, because they don’t repre­sent the candi­dates who won the State’s pop­u­lar elec­tion).

And if the Vice Presi­dent hands the tellers more than one certi­fied list of votes pur­port­ing to come from the same State, Con­gress must have a way of verify­ing which are the State’s true elec­tors.

Accord­ingly, in 1792, Con­gress began enact­ing laws requiring Gov­ernors to exe­cute a “cer­tif­i­cate of ascer­tain­ment” declaring the results of the State’s elec­tion and naming the elec­tors who’ve been appointed in accord­ance with State law. And if the State’s elec­tors sub­se­quently change—as a result of a recount or a court ruling deciding the out­come of the elec­tion or because an elec­tor needs to be replaced—the Gov­ernor is required to pre­pare a cor­rected cer­tif­i­cate.

There’s no ques­tion this man­date is con­sti­tu­tional: It’s a neces­sary and appro­pri­ate means for carry­ing out the Con­sti­tu­tion’s com­bined State-Fed­eral sys­tem for electing Presi­dents. It’s there­fore not an improper com­man­deer­ing of State auth­or­ity by the Fed­eral Gov­ern­ment.

Elec­toral votes might also be declared invalid if the elec­tors fail to certi­fy them prop­erly or if the elec­tors acted cor­ruptly or con­trary to law in giving their votes—for example, if an elec­tor com­mitted fraud or took a bribe in exchange for his vote, or if he cast his vote in vio­la­tion of a State’s “faith­less elec­tor” law that requires the State’s elec­tors to honor their pledges to the candi­dates they repre­sent.

Since the ear­liest days of the Repub­lic, it’s been recog­nized that in con­ducting the elec­toral count, Con­gress can reject ques­tion­able votes.

The issue first arose during the elec­tion of 1796 when sev­eral news­papers ran articles ques­tion­ing whether Ver­mont’s four elec­tors had been law­fully appointed.

(There’s rea­son to believe the articles were kindled by arch-Fed­eralist Alex­ander Ham­il­ton, who was hoping to engi­neer an elec­toral vic­tory for a Fed­eralist candi­date other than John Adams, even though Adams, the sitting Vice Presi­dent, was the pre­ferred choice of most Fed­eralists for Presi­dent that year.)

When the tellers announced Ver­mont’s elec­toral votes at the joint meet­ing of Con­gress, Vice Presi­dent Adams, the pre­siding officer (and a true states­man), paused the pro­ceed­ings for sev­eral moments to give Mem­bers an oppor­tunity to object before open­ing the next State’s votes.

By pausing, Adams showed he under­stood that Mem­bers could raise objec­tions and that Con­gress had the power to decide the validity of con­tested votes. (As it turned out, no chal­lenge was made and Ver­mont’s votes were counted, which proved deci­sive, since Adams won the Presi­dency by just three votes over Thomas Jeffer­son.)

At the next elec­toral count, fol­low­ing the elec­tion of 1800, the actions of the tellers and the Vice Presi­dent (then Thomas Jeffer­son) were also con­sis­tent with this con­clu­sion.

Georgia’s four elec­tors cast their votes in 1800 for the Demo­cratic-Repub­li­can Party’s candi­dates for Presi­dent and Vice Presi­dent, Jeffer­son and former Senator from New York Aaron Burr. They hand­wrote the names of the two candi­dates at the top of a sheet and all four put their sig­na­tures under each name. The Gov­ernor of Georgia wrote his cer­tif­i­cate of ascer­tain­ment on the oppo­site side of the same sheet.

The elec­tors sealed the sheet in the required enve­lope, and then, on the out­side of the enve­lope, they certi­fied, once again with all four sign­ing, that the enve­lope con­tained their list of elec­toral votes.

Georgia’s votes were the last to be tallied at the elec­toral count. There were three tellers review­ing the certi­fied lists, one Senator and two Repre­sen­ta­tives.

As reported the same day in the lead­ing Demo­cratic-Repub­lican news­paper of Phila­del­phia, “The Tellers declared there was some infor­mality in the votes of Georgia, but believing them to be the true votes, reported them as such.”

In other words, despite the unusual form of the list and the place­ment of the elec­tors’ cer­ti­fi­ca­tion on the out­side of the enve­lope, the tellers deter­mined that the votes were validly made and should be counted. Based on the news­paper’s report, it seems the tellers did declare to the Senate and House that there was some­thing unusual in the form of the Georgia votes but then pro­ceeded to announce the votes as valid. No other Mem­bers raised an objec­tion.

The tellers got it right: The list met the bare require­ments of the Con­sti­tu­tion because it iden­tified the candi­dates voted for and indi­cated the num­ber of votes for each by the separ­ate col­umn of four sig­na­tures under each candi­date’s name; and while the certi­fi­ca­tion was not placed inside the enve­lope with the list, the Con­sti­tu­tion speci­fies only that the list itself must be trans­mitted in a sealed enve­lope. By writing the cer­ti­fi­ca­tion on the enve­lope, the elec­tors guar­an­teed that it would not be separ­ated from the enclosed list.

Further­more, it’s sig­nif­i­cant that two of the three tellers were Fed­eralists who were unfriendly to Jeffer­son and sup­ported his oppo­nent, incum­bent Presi­dent John Adams. If those two tellers had believed there was a good faith basis to reject the Georgia votes, they likely would have acted to do so.

Instead, the tellers toted up the votes of all the States and reported the totals to Vice Presi­dent Jeffer­son, who (with­out pausing) announced them to the joint meet­ing: Jeffer­son and his run­ning mate Burr were tied for the lead with 73 elec­toral votes each; Adams was third with 65; and Adams’s run­ning mate, Fed­eralist candi­date for Vice Presi­dent Charles C. Pink­ney, had 64.

(Before rati­fi­ca­tion of the Twelfth Amend­ment, the elec­tors voted for two candi­dates on a single bal­lot, only one of whom could be a home-State favor­ite son. With all the votes com­bined into one pool for count­ing, the win­ner would be Presi­dent and the runner up Vice Presi­dent.)

(This sys­tem was designed to select leaders with national stature who could rise above regional fac­tion­alism, but it failed to antici­pate the evo­lu­tion of party poli­tics. By 1800, each major party was run­ning organ­ized tickets for Presi­dent and Vice Presi­dent, a prac­tice at odds with the single-bal­lot sys­tem.)

(Jeffer­son and the D-R Party prob­ably expected one of their elec­tors to name some­one other than Burr as the second candi­date on his bal­lot to ensure Jeffer­son the top spot, just as the Fed­eralist elec­tors did for Adams. The Party was well-organ­ized and disci­plined, but it was diffi­cult in 1800 to coor­di­nate actions over long dis­tances and Jeffer­son was not a forcible politi­cal oper­ator like Ham­il­ton, so when it came time for the elec­toral bal­lots to be cast, no D-R elec­tor felt empow­ered to vary from the Party’s ticket.)

The four votes from Georgia were critical to the out­come of the 1800 elec­tion.

With­out Georgia, Jeffer­son and Burr’s vote counts would have fallen short of a major­ity of the total num­ber of appointed elec­tors. In that event, under the Con­sti­tu­tion’s orig­inal scheme, the House of Repre­sen­ta­tives would have chosen the Presi­dent from the top five vote getters, and Adams almost cer­tainly would have been re­elected to a second term, since the Fed­er­al­ists con­trolled most of the State dele­ga­tions in the House.

But with Georgia’s votes counted, the two Demo­cratic-Repub­lican run­ning mates went over the major­ity thresh­old, and the House could only break the tie by choosing between the two of them—a Hob­son’s choice for the Fed­eralists.

Still, it wasn’t a lock for Jeffer­son. It took no fewer than 36 rounds of bal­lot­ing in the House before he was elec­ted Presi­dent. All the Demo­cratic-Repub­li­cans loy­ally voted for him in every round, but most of the Fed­er­al­ists mis­chie­vously voted for Burr as a pro­test.

(Why didn’t Burr just con­cede to Jeffer­son instead of forcing the House to vote? Pub­licly, he pro­fessed con­cern that he couldn’t bow out of the House bal­lot­ing for Presi­dent with­out also removing him­self from con­ten­tion to be the Vice Presi­dent. But then, too, it was plain to many that Burr, who had made a run for Presi­dent in 1796, pri­vately fancied the sud­den pos­si­bility that he might actually gain the Presi­dency.)

Jeffer­son finally pre­vailed only because his erst­while rival, Ham­il­ton, used his con­sid­er­able influ­ence to per­suade sev­eral Fed­er­al­ist Repre­sen­ta­tives to abstain or other­wise with­hold their votes from Burr, whom he despised. (Three and a half years later, the hot­spur Vice Presi­dent took his revenge—for this and other griev­ances—on the field in Wee­haw­ken.)

Rati­fied by the States on June 15, 1804 (less than a month before Burr shot Ham­il­ton), the Twelfth Amend­ment was framed to avoid a replay of 1800. It changed the elec­toral proc­ess by requiring elec­tors to cast two dis­tinct bal­lots, one naming a single candi­date for Presi­dent and the other a single candi­date for Vice Presi­dent, mir­ror­ing party tickets.

Third, the rejec­tion of dis­puted elec­toral votes requires the con­cur­rence of both Houses.

This prop­o­si­tion was affirmed in April 1800 by one of the most influ­en­tial early inter­pre­ters of the Con­sti­tu­tion, John Mar­shall, then a Repre­sen­ta­tive from Vir­ginia and soon to be the Chief Jus­tice of the United States.

The Fed­er­al­ist-con­trolled Senate had passed a bill to create a “grand com­mit­tee,” made up of six Senators and six Repre­sen­ta­tives but chaired by the Chief Justice, to inves­ti­gate dis­puted Presi­den­tial elec­tions and deter­mine the validity of any con­tested elec­toral votes. Under the pro­posed legis­la­tion, the deter­mi­na­tions reached by the grand com­mit­tee would be bind­ing on Con­gress.

(Both the Fed­er­al­ists in Con­gress and Thomas Jeffer­son believed that the crea­tion of such a grand com­mit­tee would make it harder for Jeffer­son to be elected Presi­dent in the fall.)

When the bill reached the House, Mar­shall objected to it. Though a deter­mined Fed­er­al­ist him­self, Mar­shall was an even stronger defender of the Con­sti­tu­tion, and he saw that the pro­posal to block the Senate and House, as bodies, from resolving dis­putes over the elec­toral count would be uncon­sti­tu­tional.

Mar­shall was appointed chair­man of a select House com­mit­tee to redraft the bill, and on April 25, 1800, his com­mit­tee reported out an amended ver­sion of the legis­lation.

Mar­shall’s redraft pro­vided that the grand com­mit­tee’s recom­men­da­tions would be advi­sory only. Further­more, it pro­vided that when objec­tions were made to any elec­toral votes at the joint meet­ing, the chal­lenged votes would be counted unless the Senate and House, meet­ing separ­ately, con­curred in reject­ing the con­tested votes.

In the end, the Senate didn’t approve Mar­shall’s amend­ments and the bill died. Never­the­less, Mar­shall’s actions solidi­fied the prin­ciple that any deci­sion to reject dis­puted elec­toral votes requires the con­cur­rence of both Houses of Con­gress.

Accord­ingly, if the tellers iden­tify a prob­lem with any elec­toral votes, or if other Mem­bers of Con­gress raise a ger­mane chal­lenge to par­tic­u­lar elec­toral votes by motion, each House (acting separ­ately) retains the power to address the ques­tion (or to give its desig­nated tellers further instruc­tions on how to han­dle the mat­ter) by unani­mous con­sent or major­ity vote of its Mem­bers.

This power is implied in the Count­ing Clause and is also supported by the Rules Clause of Article I, Section 5 of the Con­sti­tu­tion, which says that “Each House may deter­mine the Rules of its Pro­ceed­ings.”

There’s no require­ment that Con­gress resolve elec­toral-count issues by law or by joint reso­lu­tion, so there’s no argu­ment that the separate decisions of the Senate and House with regard to dis­puted elec­toral votes must be pre­sented to the Presi­dent for his approval under Arti­cle I, Sec­tion 7. The Framers obvi­ously didn’t intend that real-time dis­putes about an on­going elec­toral count would ever be pre­sented for deci­sion to the sit­ting Presi­dent.

But, of course, Con­gress also possesses power under the Neces­sary and Proper Clause of Arti­cle I, Sec­tion 8 to enact laws codi­fy­ing the pro­ce­dures the Senate and House will fol­low in con­duct­ing the elec­toral count.

It’s obvi­ously pref­er­able to estab­lish the pro­ce­dural frame­work by law in advance of any actual dis­pute, so as to avoid as far as pos­si­ble the need for the two Houses to make ad hoc deci­sions in the heat of a con­tested elec­toral count.

That’s pre­cisely what Con­gress did in the Elec­toral Count Act of 1887.

In theory, it may be true under the Count­ing Clause and the Rules Clause that each House remains free to adopt special pro­ce­dures for its own par­tici­pa­tion in the elec­toral count not­with­stand­ing any frame­work pre­scribed by statute. But since the pas­sage of the Elec­toral Count Act, both Houses have con­sis­tently approved con­cur­rent reso­lu­tions for the joint meet­ing that incorporate the Act’s statu­tory require­ments.

The three prop­o­si­tions laid out above are faith­fully reflected in the Elec­toral Count Act.

At its center (codified in 3 U.S.C. § 15), the Act lays down a three-step pro­ce­dure for resolving objec­tions to elec­toral votes, which by now should sound familiar:

• The tellers (two appointed by each House) review the cer­ti­fied lists opened by the Vice Presi­dent, ascer­tain the votes shown on each list, and read the votes out State-by-State to the assembled Senate and House.

• As each State’s elec­toral votes are read, any Mem­ber may raise an objec­tion to the State’s votes, pro­vided the objec­tion is made in writing and sup­ported by at least one Mem­ber from each House.

• If objec­tions are made to a State’s votes, the two Houses separ­ate and each debates the objec­tions for up to two hours and takes a vote on whether to approve the objec­tions; only if both Houses con­cur will the dis­puted elec­toral votes be set aside and not counted.

Because this frame­work was con­sis­tent with the orig­inal under­stand­ing of the Count­ing Clause and sup­ported by his­tor­i­cal prac­tice, it wasn’t con­tro­ver­sial in 1887. In other words, Con­gress didn’t pass the Elec­toral Count Act because of any doubt about the auth­ority of the Senate and House to resolve dis­putes over elec­toral votes.

Rather, the Act was needed to advance two other pur­poses:

One was to make double sure the elec­tors and Con­gress received a timely and reliable cer­tif­i­cate of ascer­tain­ment from the State’s Gov­ernor and that Con­gress was made aware of any con­trolling State court deci­sion affecting the out­come of the State’s elec­tion.

The second pur­pose was to estab­lish rules that would guide the resolu­tion of dis­putes in the elec­toral count if the two Houses failed to con­cur.

The Act was moti­vated by the para­lyzing elec­tion show­down of 1876, when Con­gress received com­peting slates of elec­toral votes from four States and the Senate and House, con­trolled by dif­fer­ent parties, couldn’t agree on which votes to count. (See my dis­cus­sion of the 1876 Presi­den­tial elec­tion in Essay: Through the Wilder­ness with Sam Grant.)

To achieve these goals, the Act sets forth a com­plex hier­archy of pre­sump­tions in favor of elec­tors whose appoint­ment has been deter­mined by a con­trolling State court deci­sion (3 U.S.C. § 5) (known as the “safe har­bor”) or cer­ti­fied by the Gov­ernor (3 U.S.C. § 6).

Packed within a single pas­sage of spell­bind­ing pro­lixity (the same pro­vision con­tain­ing the basic pro­ce­dural frame­work described above), the Act uses the Gov­ernor’s cer­ti­fi­ca­tion and the safe har­bor to create a deci­sional water­fall for the Senate and House to follow in the elec­toral count (3 U.S.C. § 15).

To dis­en­tangle and sim­plify the layers of rules embedded in Sec­tion 15:

1. If a State sub­mits a single set of elec­toral votes from elec­tors cer­ti­fied by the Gov­ernor, those votes will be counted, unless both Houses of Con­gress agree the votes were not “regu­larly given” (for example, a faith­less or cor­rupt elec­tor).

2. If a State sub­mits multi­ple sets of con­flict­ing votes, Con­gress will count only the votes sup­ported by a con­trolling State court deci­sion (the safe harbor), unless both Houses agree the votes were not regu­larly given.

3. If there are con­flict­ing sets of votes from a State and con­flict­ing State court deci­sions, Con­gress will count the votes of those elec­tors that both Houses agree are sup­ported by a con­trolling State court deci­sion (basically, both Houses must agree on which votes to count).

4. If there are con­flict­ing sets of votes and no con­trolling State court deci­sion, both Houses must agree on which votes to count; if the two Houses don’t agree, Con­gress will count the votes of the elec­tors cer­ti­fied by the Gov­ernor (this is known as the “Gov­ernor’s tie­breaker”).

While sound in con­cept and con­sistent with the Con­sti­tu­tion, the Act urgently needs reform.

The gen­eral struc­ture and approach of the Act are sensible and have served the Nation well. Never­the­less, now 135 years old, the Elec­toral Count Act must be updated. It’s too com­plex and diffi­cult to inter­pret, it’s out of date in im­por­tant respects, and sev­eral of its pro­vi­sions invite mis­chief, which we saw play out in the chaos of Jan­u­ary 2021.

Despite its well-inten­tioned scheme of belts and suspenders, the Act still con­tem­plates that Con­gress may need to choose between com­peting sub­mis­sions of elec­toral votes from a State, and that, on occa­sion, Con­gress could be called upon to decide the out­come of the elec­tion in a State where no reliable final deter­mi­na­tion has been reached under State law. That’s apparent from the litany of scenarios in Section 15.

Ideally, the statute would be amended to guar­an­tee that in all events (1) every State’s Gov­ernor cer­ti­fies one final offi­cial slate of elec­tors before the date the elec­tors are required to meet, (2) the final cer­ti­fied slate of elec­tors for each State con­forms to the State’s elec­tion out­come under the laws in effect before Elec­tion Day, and (3) only the votes of those cer­ti­fied elec­tors are counted by the Senate and House.

Is there a simpler, more effi­cient struc­ture Con­gress can adopt to realize these objectives and seal the cracks in the Act?

Yes, there is.

To see the solu­tion, we need to under­stand the pri­mary rea­son for the defi­cien­cies in the legacy Act.

The Con­gress of 1887 was oper­ating with a far more con­stricted under­stand­ing of Fed­eral court juris­dic­tion than we have today. Judi­cial prece­dents inter­pre­ting the require­ments of the Four­teenth Amend­ment and address­ing the scope of Fed­eral juris­dic­tion over elec­tions were much less devel­oped back then.

Today, the most sig­nif­i­cant law­suits relating to State man­age­ment of Fed­eral elec­tions are usually decided in Fed­eral court, not State court—a juris­pru­den­tial reality unknown in 1887.

And with Bush v. Gore, it’s now per­fectly clear that the Due Proc­ess and Equal Pro­tec­tion Clauses of the Four­teenth Amend­ment for­bid States from changing their elec­tion pro­ce­dures after voting has begun in a way that would ignore or devalue votes law­fully cast under the pro­ce­dures in place before Elec­tion Day.

Using today’s under­stand­ing of Fed­eral juris­dic­tion, Con­gress can replace the old Act’s deficient scheme with a surer one that relies on Fed­eral court review:

To address the pos­si­bility that a Gov­ernor may fail or refuse to issue the cer­tif­i­cate of as­cer­tain­ment required by the Act or may cer­tify the wrong slate of elec­tors (one that doesn’t reflect the offi­cial out­come of the State’s pop­u­lar elec­tion), Con­gress can estab­lish an expe­dited pro­ce­dure in Fed­eral court.

For exam­ple, Con­gress can pro­vide for prompt review and deci­sion by a three-judge panel in the dis­trict court with imme­diate appeal to the Supreme Court, there­by enabling aggrieved candi­dates to obtain a cor­rec­tive judi­cial ruling before the elec­tors are scheduled to meet.

Con­gress can then com­mit itself to count only the votes of those elec­tors whose iden­ti­ties have been cer­ti­fied by a Gov­ernor or deter­mined by a bind­ing court ruling, whether State or Federal.

This straight­for­ward reform will effec­tively ensure that the Senate and House don’t reliti­gate a State’s elec­tion results through the elec­toral count.

A second major reform that’s needed (one inspired by Bush v. Gore) is to clarify that States can’t change the rules for appoint­ing their elec­tors after Elec­tion Day, including in cases where the out­come of the elec­tion is in doubt.

Cur­rently, Section 2 of the Act states:

“When­ever any State has held an elec­tion for the pur­pose of choosing elec­tors, and has failed to make a choice on the day pre­scribed by law, the elec­tors may be appointed on a sub­se­quent day in such a man­ner as the legis­la­ture of such State may direct.” (3 U.S.C. § 2.)

Presi­dent Trump’s law­yers cited this “failed elec­tion” lan­guage in arguing that State Legis­la­tures could dis­re­gard con­tested elec­tion returns and appoint elec­tors of their own choice.

Any effort by a State to change the manner of appoint­ing elec­tors once voting has begun would almost cer­tainly vio­late the due pro­cess and equal pro­tec­tion prin­ciples applied in Bush v. Gore.

Still, Con­gress should elim­i­nate the statu­tory hook for a “failed elec­tion” gam­bit.

Con­gress con­trols the timing of the Presi­den­tial elec­tion and could allow States to extend the period of voting where neces­sary because of truly extra­ordi­nary cir­cum­stances—for exam­ple, if voting across the State is dis­rupted by a wide­spread natural disas­ter, a terror­ist attack, an insur­rec­tion, or a for­eign inva­sion.

And using its timing auth­ority, Con­gress can pro­vide that the voting period may only be extended if the grounds for exten­sion are set forth in a State law enacted prior to Elec­tion Day.

Con­gress should revise Sec­tion 2 of the Act accord­ingly.

Finally, the Act should be amended to raise the thresh­old for making objec­tions to elec­toral votes and to limit the grounds for object­ing.

The cur­rent law allows objec­tions if sup­ported by just two Mem­bers of Con­gress, one Senator and one Repre­sen­ta­tive. This de mini­mis thresh­old invites Mem­bers to delay the count with frivo­lous chal­lenges, and it’s led to an unfor­tu­nate increase in base­less objec­tions since the dis­puted elec­tion of 2000.

Con­gress should require that objec­tions be sup­ported by at least one-fifth of the Mem­bers of each House—that would be 20 Senators and 87 Repre­sen­ta­tives.

A one-fifth thresh­old will ensure that Con­gress inter­rupts the count only to debate well-con­sidered chal­lenges that start out with sub­stan­tial sup­port in both Houses. But it wouldn’t be so high as to fore­close oppor­tunities for objec­tors to per­suade skep­tical Mem­bers of the merits of a well-founded chal­lenge.

Further, Con­gress could enu­merate the per­mis­sible grounds for objec­tions to rule out any remain­ing temp­ta­tion for Mem­bers to mis­use the objec­tion proc­ess.

Objec­tions could be limited, for example, to claims—

• That an elec­tor was not law­fully cer­ti­fied (such as if a Gov­ernor of a Ter­ri­tory attempted to cer­tify elec­tors, if a Gov­ernor attempted to cer­tify more elec­tors than the State was entitled to, if a person cer­ti­fied as an elec­tor held an office in the Fed­eral Gov­ern­ment and was there­fore con­sti­tu­tion­ally inelig­ible for appoint­ment, or if the per­son casting the vote was not the per­son cer­ti­fied to be an elec­tor); and

• That an electoral vote was not regularly given (such as if the elec­tor’s vote vio­lated the State’s faithless elector law, was given fraudulently or corruptly, or wasn’t signed and certified as required by the Constitution).

Happily, there’s biparti­san legis­la­tion cur­rently pend­ing in the Senate that would achieve all of these needed reforms: the Elec­toral Count Reform Act of 2022, co-spon­sored by Sena­tors Susan Col­lins and Joe Man­chin.

Con­gress should move this bill for­ward at the earli­est oppor­tunity so that up­dated elec­toral count pro­ce­dures are in place well in advance of the 2024 Presi­den­tial elec­tion.

The elec­toral count is not the best for­um for adju­di­cating claims of voter fraud or other chal­lenges to a State’s elec­tion results. The way to ensure that the count pro­ceeds as a sim­ple, sol­emn, and drama-free cere­mony is to require the Senate and House to accept the offi­cial out­come of each State’s pop­u­lar elec­tion, as deter­mined either by the State’s senior elec­tion offi­cer or by a bind­ing court ruling.