There is wide agreement that the Electoral Count Act (ECA), the 1887 law governing the final tally of electoral votes for President, is badly outmoded and in need of reform. But many difficult choices will lie along the path from this general consensus to concrete legislation. At the invitation of The American Law Institute (ALI), a group whose members span a range of legal and political views met to consider the way forward on ECA reform. We came to agree on the following principles, distilled from a longer treatment, which could provide a path to bipartisan reform.
First, and most fundamental, Congress lacks the constitutional authority and the institutional capacity to address every conceivable dispute or question about the outcome of a presidential election. Congress can address some of the problems that may arise, but resolution of most will depend on other institutions. Acknowledgement of the limits on Congress’ role can help address legitimate concerns about its vulnerability, particularly in this age of hyper-polarized politics, to powerful partisan pressures in the presidential election context.
Second, consistent with these constitutional limits and institutional considerations, Congress’s job is not to adjudicate disputes over the election results in the states, including the legality of specific ballots cast and the accuracy of the vote count. Its main task is to perform its constitutionally prescribed duty to count the electoral votes sent to it by the States.
This means that Congress should limit its objections to the electors chosen by the States only on grounds specified in the Constitution, such as whether the electors met constitutional requirements.
Relatedly, ECA reform should clarify that, in the electoral vote count proceedings, the authority of the Vice President— in her constitutionally assigned role as President of the Senate—is limited to opening envelopes with lists of electors’ votes transmitted by the States, and to maintaining order and compliance with the rules governing this process when she is sitting as the proceedings’ presiding officer.
A commitment to a constitutionally prescribed, narrow role for Congress raises the question of what it should do when—as has occasionally happened in the past—different state institutions send different lists of electors for Congress to count. Congress must choose one in order to meet its constitutional duties, and this choice turns on which state institution has the authority under state law to send the proper list.
The ALI group proposes that Congress should empower a candidate for president or vice president to ask a federal court to identify the State officials or body responsible for certifying final election results. The purpose of this provision is to support Congress in discharging its constitutional duty to count the electoral votes properly certified under state laws in place on Election Day.
Some in Congress may object to any new types of federal lawsuits related to the selection of presidential electors. But such general concerns should not apply to a discrete and limited effort to address a problem—protecting the efficacy of State law in the choice of the president and vice president— that lends itself more to judicial than legislative resolution.
Third, Congress’ constitutional authority over the timing of presidential elections does enable it to prevent states from changing the rules for the election after it has been held. Congress should thus make clear that after the Election Day specified by Congress, state institutions cannot act to change the state’s laws for the purpose of selecting electors other than those pledged to the candidates the voters chose.
Some who favor on a limited role for Congress in counting electoral votes nonetheless believe that it should have “break glass” authority to address other forms of extreme mischief that may occur in the States, especially related to claims of fraud in the counting of the vote in the States. On this premise, some have proposed that Congress should be able to look behind the certificates of electoral votes sent by the States to, for example, count more votes or throw out others.
Any such provision will invite serious constitutional challenges. And Congress is not institutionally well-suited to sort out what counts as a “break glass” emergency, especially in the middle of a crisis over a close and contested vote count.
There are other ways to address these concerns, and other institutions are well positioned to address them. States have recount and contest processes, including appeals to state courts, that allow for testing of any challenges to the vote count. Moreover, the federal courts have settled authority under the Due Process and Equal Protection clauses, and other constitutional provisions, to adjudicate claims of unlawful State action in the administration, count, and certification of a State’s popular vote. They resolved those claims in the past, as they did in 2020 and earlier.
Our group’s proposal is one of a number that have been made to meet the urgent need for ECA reform before the next presidential election. Congress has much good work and thought to consider and choose from. We believe that the principles on which we unanimously agreed are well matched to the constitutional roles and institutional capacities of the full set of institutional actors—Congress, the states, and the courts.
And that these principles could, as it did in our case, command broad support across the partisan and ideological divide.
The members of the group, selected for their deep and varied experience in law and government, are:
- Bob Bauer (NYU School of Law and former White House Counsel) (Co-Chair)
- Elise C. Boddie (Rutgers Law School, and former litigation director of the NAACP Legal Defense and Educational Fund)
- Mariano-Florentino Cuéllar (President of the Carnegie Endowment for International Peace, and formerly a Justice of the California Supreme Court)
- Courtney Simmons Elwood (former General Counsel of the Central Intelligence Agency)
- Jack Goldsmith (Harvard Law School and former Assistant Attorney General, Office of Legal Counsel) (Co-Chair)
- Larry Kramer (President of the William and Flora Hewlett Foundation, and former Dean of Stanford Law School)
- Don McGahn (Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University, and former White House Counsel)
- Michael B. Mukasey (former United States District Court Judge and former United States Attorney General)
- Saikrishna Prakash (University of Virginia School of Law)
- David Strauss (University of Chicago Law School)