ARGUMENT: TIGHTENING ELECTION RULESCorrecting Misconceptions About the Electoral Count Reform Act

The Electoral Count Reform Act(ECRA) recently introduced by a bipartisan group of senators is an exceptionally promising development in our polarized era, Bob Bauer and Jack Goldsmith write in Lawfare. They note that it has been apparent for a long time that the Electoral Count Act (ECA)—the 1887 law designed to ensure that presidential elections operate with integrity, and that this bill would replace—is flawed. These flaws were on full display during the counting of electoral votes in 2020-2021, but all of the flaws had historical precursors.

Bauer and Goldsmith write:

The ECRA addresses and resolves these flaws in thoughtful ways that should—as they did within the group that produced the bill—attract bipartisan support in Congress. The bill gives full effect to state laws governing presidential elections that are in place on the date of the vote; eliminates (to the extent possible through legislation that rests on a strong constitutional foundation) the tools available to rogue actors to disregard the results of those elections after the fact; imposes duties on state officials and judicial review processes that serve as meaningful and effective checks should rogue actors nevertheless attempt to disregard or cast aside election results; and narrows congressional prerogatives to disregard legitimate electors chosen in state elections. In short, the bill helps to ensure that the president and vice president are chosen by the voters in accord with the state law that governed the election, and not via postelection manipulation—in Congress or the states—of the presidential elector process.

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.

They conclude:

The ECRA embodies bipartisan agreement on substantial improvements to the consideration and counting of electoral votes. Many of the criticisms that have been leveled against it are answered by the plain text of the ECRA itself, which anchors clear duties on state and congressional actors in well-established constitutional authority. There may well be room for tweaks or clarifications, but on the whole, the bill is an outstanding contribution to protecting the integrity of presidential elections.