Lawfare: Correcting Misconceptions About the Electoral Count Reform Act
Presidential Reform Project co-chairs Bob Bauer and Jack Goldsmith published the following article in Lawfare in which they respond to objections made against efforts to reform the Electoral Count Act. Bauer and Goldsmith also defend the proposed slate of reforms recently introduced by the bipartisan Senate working group.
There will doubtless be reasonable proposals in the weeks ahead for changes to strengthen or clarify provisions of this draft. It will be important to distinguish those proposals from misguided criticisms of the core design. In the last days, amid the widely favorable reception of the bipartisan group draft, we have seen the emergence of such criticisms as well.
Of course, the bill could have been written differently. Our own proposal, developed with a group convened by the American Law Institute, differs in several respects from the bipartisan draft bill. Yet in the end, any ECA reform requires choices among alternative approaches that are constitutionally grounded, responsive to concerns on both sides of the aisle, and workable in the concrete context of future electoral conflict. The aim here should be to craft a well-constructed improvement over existing law that can pass. Against this standard, it is difficult to imagine a more skillfully designed answer to the basic design challenge of ECA reform than the one produced by the bipartisan group.