Find out what people across the political spectrum are saying about the need to update the Electoral Count Act:
Genevieve Nadeau and Thomas Berry, “Here’s What Electoral Count Act Reform Should Look Like.” Lawfare, March 4, 2022.
As momentum in favor of updating the ECA grows, there is some concern that Congress may shy away from comprehensive reform and instead tackle only the most obvious flaws in the law. That would be a missed opportunity. Congress can and should remain faithful to the original purpose of the statute (and the Constitution) while also remedying dangerous weaknesses in the ECA that invite uncertainty as to the various roles that state and federal actors, as well as the different branches of government, play in the process. It can do so by addressing five key aspects of the law on which there seems to be a fair amount of consensus across the ideological spectrum.
Bob Bauer and Jack Goldsmith, “Principles for Electoral Count Act Reform.” Lawfare, March 4, 2022.
For the last several months, at the invitation of the leadership of the American Law Institute, a group whose 10 members span a range of legal and political views came together to consider possible Electoral Count Act (ECA) reforms. …Today our group is releasing the unanimous conclusion of its deliberations, which can be found here. The group agrees that Congress should reform the ECA in time for the 2024 election, and offers both core reform principles and specific proposals for statutory revision in an effort to contribute to a constitutionally sound bipartisan consensus in Congress.
Judge Michael Luttig, “The Conservative Case for Avoiding a Repeat of Jan. 6th.” New York Times, February 14, 2022.
“It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. … The needed changes, which would meet the political objectives of both parties, should command broad bipartisan support in any responsible Congress. For Republicans in particular, these changes are sleeves off their vests. Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.”
Editorial Board, “Jan. 6 Was a Warning. Will Lawmakers Do Anything to Protect the 2024 Election?” New York Times, February 5, 2022.
“If [ECA reform] essential components do pass, Democrats can take comfort in knowing that politicians and lawmakers will have a much harder time undermining a valid vote. Republicans, who like to talk about the importance of states’ rights in our federalist system, can be reassured that Congress will stay in its lane and leave the power to appoint electors with the states, where it belongs.”
Zach Wamp and Tim Roemer, “Elections should be decided by voters, not partisan politicians.” Washington Examiner, January 25, 2022.
“[Reforming the ECA] is supported by a majority of Republican and Democratic voters, according to a number of recent polls. Many have expressed their concern that one party in Congress could try to overturn the results of an upcoming presidential election to put their own candidate in power. Our leaders should listen to the American people and fix this outdated law so that the next presidential election — and a smooth and peaceful transition of power — is not left to chance.”
Larry Diamond, “Democrats, Want to Defend Democracy? Embrace What Is Possible.” New York Times, January 25, 2022.
“[A] new bill would fix some of the most dangerous vulnerabilities in the 1887 Electoral Count Act — some of which we saw in the 2020 election — that could enable a future Congress (or a rogue vice president) to reverse the vote of the Electoral College in certain states or to plunge the process of counting electoral votes into such chaos that there would be no way of determining a legitimate winner. Such a deadlock could precipitate a far larger and more violent assault on the democratic order than what we saw on Jan. 6. Reducing the risk of such a calamity is a democratic imperative.”
Andy Craig, “What Changes Should be Made to the Electoral Count Act?” Cato Institute, January 12, 2022.
“Fixing the Electoral Count Act is urgently needed to avoid future constitutional crises. It’s likely that any version of reform proposed in Congress would be an improvement over the notoriously confusing status quo. A redrawn ECA should be grounded in the constitutional separation of powers, allowing Congress to act when it potentially needs to but otherwise closing the door to partisan malfeasance.”
Rick Hasen, “No One Is Coming to Save Us From the ‘Dagger at the Throat of America.’” New York Times, January 7, 2022.
“While Mr. Trump unsuccessfully tried to get his Republican vice president, Mike Pence, to throw the election to him or at least into chaos, Republicans know it will be Democratic vice president Kamala Harris, not Mr. Pence, who will be presiding over the Congress’s certification of Electoral College votes in 2025. Perhaps there is room for bipartisan agreement to ensure both that vice presidents don’t go rogue and that state legislatures cannot simply submit alternative slates of electors if they are unsatisfied with the election results.”
Editorial Board, “To Stabilize Democracy, Congress Must Reform the Way it Counts Electoral Votes.” Washington Post, January 5, 2022.
“Congress should reform the 1887 law, known as the Electoral Count Act (ECA), before it’s used to justify more subversion of democracy.”
Yuval Levin, “Democrats, Voting Rights Are Not The Problem.” American Enterprise Institute and New York Times, January 5, 2022.
“[A]ll of us saw just a year ago that Congress’s role in certifying presidential elections could be clarified and rid of opportunities for confusion and mischief. … [Federal legislation] could modernize and simplify the Electoral Count Act of 1887, which still governs Congress’s and the vice president’s roles in certifying presidential elections.”
Professors Edward Foley, Bradley Smith, Michael McConnell, and Richard Pildes, “How Congress Can Fix the Electoral Count Act.” Washington Post, January 4, 2022.
“[T]o 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. … Congress committed in the original Electoral Count Act not to second-guess a state’s vote when that state sends only a single slate of electors. In recent decades, that commitment has become dangerously frayed. Congress needs to update and clarify the act to produce a statute that does not invite abuse by its own members.”
Editorial Board, “Overturning the Next Election.” Wall Street Journal, January 4, 2022.
“The Electoral Count Act was an attempt to avoid the mess that followed the contested 1876 Hayes-Tilden election, but its ambiguous language has made it open to abuse. In these polarized times, both parties could use the law in the future as an excuse to attempt to overturn an election in the House and Senate. Congress shouldn’t have even the appearance of this power. … Rewriting or repealing the Electoral Count Act leaves neither party with a partisan advantage. Now is also a good time to pass such legislation, since no one knows who will control each chamber of Congress in 2025.”
David French, “Stop Screwing Around and Reform the Electoral Count Act.” Dispatch, January 4, 2022.
“If—after everything we’re learning about January 6 and Trump’s effort to steal the election—we don’t reform the Electoral Count Act, we’re idiots. There’s just no other way to say it. If that sounds a bit wonky and weird, the reasoning is easy enough to explain. Congress passed the Electoral Count Act in 1887 as a decade-overdue response to the disputed election of 1876. It’s supposed to provide a mechanism for responding to and resolving disputes in counting and certifying the vote of the Electoral College, and while the overall intent is relatively clear, the language itself is a ridiculous mess.“
Editorial Board, “Reform the Electoral Count Act.” Washington Examiner, January 3, 2022.
“There were no legitimate grounds to reject the results certified by each of the states. But the vital need is not to castigate but to urge future measures. The Trump team’s identification of all the procedural confusions in the ECA shows that the law needs reform. The attempted decertification nearly brought the electoral system to a dangerous impasse. The system cannot afford another such instance of impasse and instability.”
Editors, “Republicans Should Help Reform the Electoral Count Act.” National Review, December 18, 2021.
“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.”
Andy Craig, “Republicans Should Support Electoral Count Act Reform.” Cato Institute, December 15, 2021.
“Republicans should see there are both good, principled reasons to support ECA reform as well as strong reasons of partisan self-interest. The status quo serves neither party. The necessity of obtaining Republican votes for ECA reform will also let them nix any changes they find unacceptable, but only if they’re at the table.”
Kevin Kosar, “Congress can prevent another Jan. 6 by updating a key elections law.” The Hill, December 14, 2021.
“More should be done to ensure Congress does not monkey with states’ electoral determinations. One way to do this would be to update the Electoral Count Act (ECA), the 1887 act that provides vague guidance on how to conclude a presidential election.”
Ben Ginsberg, “Republicans in Congress Should Update the Electoral Count Act Before It’s Too Late.” National Review, December 5, 2021.
“Designed to govern Congress’s tabulation of Electoral College votes — including disputes between the chambers — the aged law is a swamp of ambiguity. Its byzantine, vague, and muddled provisions do not provide sufficient answers to crucial questions that could arise in a genuinely close election. Despite the fact that the former president’s attempts to exploit those shortcomings failed in 2020, he and all Republicans should be haunted by the blueprint that he has created for his opponents if he were to run for office again in 2024.”
Ramesh Ponnuru, “U.S. Election Coups? Really? Let’s All Take a Deep Breath.” National Review and Bloomberg, October 3, 2021.
“To the extent that Trump’s post-election campaign compels any policy response at all, it is a reform of the Electoral Count Act of 1887, which contains confusions and imperfections that an unscrupulous and nimble political leader could exploit.”
Quin Hillyer, “Two new reports of Trump cheating attempts show why the ‘Electoral Count Act’ needs an overhaul.” Washington Examiner, September 23, 2021.
“Congress should revisit the ECA. Because there is no way to know which party in the future might benefit, or suffer, from the ECA’s confusion, it is in both parties’ interest to pare down its processes and to describe them in plainer English. If Pence had acted upon the advice in the Eastman memo, the whole U.S. body politic might have come apart at the seams, creating weeks of Jan. 6-like riots instead of just one day. A single day was bad enough. The best way to avoid another like it is to write a law whose meaning we can count on.”
Trevor Potter & Norm Ornstein, “Congress Has The Power To Prevent A Repeat Of January 6.” Talking Points Memo, August 16, 2021.
“…We can’t lose sight of what made Jan. 6 a pivotal date. It is the date set by an 1887 law for the counting of electoral college votes — and it was the controversy engineered by Donald Trump over those votes that precipitated the violence. That law — the Electoral Count Act (ECA) of 1887 — is outdated. Congress can take an important step toward restoring Americans’ trust in the integrity of our democratic process by updating an obsolete law most Americans have never heard of, which is full of archaic and unclear language, to provide a clear and fair framework for resolving disputes in the Electoral College.”
Meredith McGehee & Elise Wirkus, “Congress Must Update the Electoral Count Act.” The Hill, July 27, 2021.
“The current ECA is arcane and out of date. The 117th Congress needs to pass a nonpartisan update that addresses the multiple weaknesses identified in the law over the past few decades to ensure that both parties understand their role in counting the slates of electors in the future. An update will help avoid uncertainty and a more destructive constitutional crisis in 2025 and beyond. Perhaps even more importantly, passing a modernized ECA will prove that — even at a time of intense partisanship — both parties can meet at the water’s edge when it comes to strengthening our most foundational constitutional processes.”
Walter Olsen, “Congress Should Clarify the Electoral Count Act of 1887.” Cato Institute, June 29, 2021.
“One high priority should be to take a look at the Electoral Count Act of 1887. … While well-intentioned, the 1887 act is very far from perfect. It leaves too wide an opening for those who would argue that Congress, the Vice President or both have leeway to exercise a selective power, rather than being bound in a ‘ministerial’ way to count arriving electoral votes. It includes some bits of vague and puzzling language, and it fails to take advantage of opportunities to clarify that, e.g., further objections are out of order if a state has certified a slate of electors without challenge under its own law.”
Kevin Kosar, “Could Kamala Harris Steal the 2024 Election for Biden – or Herself?”American Spectator, June 14, 2021.
“The Electoral Count Act is a half-buried piece of ordinance waiting to go off. The GOP politicians played with fire on January 6, and they would be very wise to get behind legislation to ensure that come the next presidential election they and our republic are not on the losing end.”
Dan McLaughlin, “Fixing the Electoral Count Act is a good idea.” National Review, June 11, 2021.
“Even if neither party provokes a crisis in 2024, we do not know what will come down the road. It is better to fix your umbrella while the sun is still shining. Congress spent a decade working on avoiding a repetition of the crisis of 1876, resulting in the ECA’s passage in 1887. It has served us well for over a century, but its convoluted language could use some updating in order to eliminate some of the arguments that were made in 2020.”
Mona Charen, “Don’t Cry for H.R.1 – Amend the Electoral Count Act Instead.” The Bulwark, June 10, 2021.
“There is something Democrats can do at the federal level to respond to the threat: They can amend the Electoral Count Act of 1887. … This law, blissfully ignored for most of its history with the exception of a couple of law review articles, was passed following the contentious Hayes/Tilden election in 1876—a contest that was so close it threatened to tear the country apart just 11 years after Appomattox. The law is, by many accounts, a ‘morass of ambiguity.’ That’s too kind.”