The Electoral Count Act of 1887 has established an overly-complicated method for the certification of the Electoral College vote. Without intelligent reforms, the process could become a political battleground for election challenges in the future. These proposals have been adapted from the reform framework offered by Presidential Reform Project Co-Chairs Bob Bauer and Jack Goldsmith through their work with a group of experts convened by the American Law Institute.
The Electoral Count Act was enacted in 1887 in response to the contested election of 1876. Its purpose was to create a process that would ensure that electoral votes for President and Vice President were property counted. But its vague, ambiguous text introduced a plethora of vulnerabilities that have the potential to be exploited by lawmakers on both the state and federal level to contest electors illegitimately.
Reform efforts should resolve these vulnerabilities to ensure that the electoral vote represents the legal outcome in each state. In order to accomplish this goal, ECA reform should follow three basic guidelines.
By following these guidelines and incorporating specific policy measures to fulfill them, Congress can ensure that the counting of electoral votes cannot be disrupted by state or federal lawmakers who have political objections to the outcome of legal elections.
The role of Congress should be clearly established, especially in regards to their ability to object to electoral votes. For instance, objections should be limited to questions over constitutional requirements over the eligibility of candidates or electors. ECA reform should also include a provision that requires at least a majority of members of each chamber to sustain an objection. Other aspects of reform should clarify that the Vice President’s authority as presiding officer is limited to opening the envelopes of electors’ votes and ensuring that the proceedings are being conducted in a legal manner.
Clarifying the Electoral College’s Meeting Date
The date of the Electoral College meeting should be changed to a later date, thus ensuring that potential legal challenges and recounts are completed or resolved. This is critical to making sure the legal process can work expeditiously and adequately address any challenges brought forward.
State-Level Attempts to Overturn Results
Reforms should be taken that ensure that states cannot interfere, disregard, or change an election outcome that was conducted pursuant to state law. Concerns over multiple slates of electors coming out of a single state can also be addressed through these reforms. For example, Congress should require that the state official or body that is legally responsible for certifying election results present the Archivist by a certain date a certificate of identification of electors and their votes that are reflective of the legal outcome of the election. Congress should further specify that it will only recognize the certificate that has been sent to the Archivist under this process.