This Director’s Letter was originally published in the spring 2022 edition of The ALI Reporter.
The attack on the Capitol on January 6 shocked most Americans and focused attention as well on the law that governs Congress’ ordinarily ceremonial count of the state’s electoral votes for President and Vice President, which took place that day and which the attack interrupted. To the members of The American Law Institute who are united by our mission “to secure the better administration of justice,” and, as important, to secure the rule of law on which the administration of justice depends, that day’s events also marked a challenge: how to ensure that the very essence of our democracy is not placed at risk again in the future.
That challenge is not easily met. The divisions that led to January 6 are not first and foremost legal ones, and the orderly transition of power depends on the civic commitment of our leaders, institutions, and people as much as on legal rules. What’s more, legal rules played out largely as intended following the 2020 presidential election, up through and including the January 6 vote count. Various state and local actors conducted counts and certified election results in accordance with state law. State and federal courts—and, ultimately, Congress—rejected spurious challenges to election results. But the fact that institutions performed relatively well in the last presidential election is no guarantee that they will perform acceptably in the next one (or in other elections).
One area of concern is the Electoral Count Act (ECA), which governs how Congress counts the electoral votes. The statute is not a model of clarity, and it is therefore essential that it be reformed to make sure that in the future it is not invoked in a manner that frustrates the will of the American people.
To undertake this important project, our President, David F. Levi, and I invited 10 individuals with extensive experience in law and government to study the ECA and to make proposals for reform. The group was chaired by Bob Bauer (currently of NYU Law School, and formerly White House Counsel to President Obama) and Jack Goldsmith (currently of Harvard Law School, and formerly Assistant Attorney General for the Office of Legal Counsel during President George W. Bush’s first administration). It contained eight other legal luminaries with extensive experience in federal and state government, the academy, and private practice and public-interest litigation: Elise C. Boddie, Mariano-Florentino Cuéllar, Courtney Simmons Elwood, Larry Kramer, Don McGahn, Michael B. Mukasey, Saikrishna Prakash, and David Strauss. Though comprising individuals from both parties (including a former Attorney General of the United States), with varied experience and often conflicting political, ideological, and legal views, the group unanimously agreed that Congress should reform the ECA prior to the 2024 election. More than that, it reached agreement around general principles that should inform reform, and on specific principles as to what reform should do. These principles—released publicly on April 4, 2022—are linked below.
This was an unusual project for the ALI in several ways. While our projects often concern federal law in some way, ALI does not ordinarily issue legislative proposals to the U.S. Congress. More importantly, this project was not submitted for approval by our Council and membership and is therefore not the official work of the Institute. The urgent need for reform and the fact that reform efforts in Congress are taking place right now meant that our typical process, which prioritizes consultation, deliberation, and consensus, but which can take years—was not a good fit.
The ALI nonetheless found a way to contribute, and I hope this contribution will substantially influence ongoing efforts at reform. This was achieved by leveraging the Institute’s unique place in American legal culture to convene a group whose names are respected in government, academia, and practice, on both sides of the aisle. The group was then able to develop thoughtful, serious proposals that the ALI has helped ensure find an audience. I am thrilled this group was able to reach consensus around a set of commonsense reforms.
Early reactions to the principles to guide reform of the Electoral Court Act have been encouraging. I very much hope that Congress approves bipartisan ECA reform and that our efforts prove to be helpful in that endeavor!
Read the Principles for ECA Reform here.