March 3, 2021

The Electoral Count Act

The Electoral Count Act of 1887 specifies the procedure by which Congress counts the votes of the Electoral College which determine who will be the next President of the United States. In the past, this has been a purely ceremonial event which merely confirms the results of the November election. In 2013, the process took a total of 23 minutes.

Though it has not received much attention until this year’s controversy surrounding Republican efforts to challenge electoral votes from swing states, the ECA is often ambiguous. Moreover, it reflects certain nineteenth century assumptions that we no longer share. For example, the ECA assumes that counting Electoral College votes is a political process whereas we view vote counting – even Electoral College vote counting – as a legal process. In practice, the ECA also relies heavily on the integrity and sense of duty of members of Congress. Under the terms of the ECA, a political party that controls both houses of Congress could install its own candidate as president if it had the political will to do so regardless of the general election results.

How should the Electoral Count Act be updated and strengthened to reflect twenty-first century conditions? To what extent and how should we insulate challenges to electors from political considerations?