Updating the Electoral Count Act of 1887
For a downloadable two-page info sheet on the Electoral Count Act, click here or scroll to the bottom of this post.
The Electoral Count Act (ECA) of 1887 sets out the process of casting and counting electoral votes after a presidential election. It is intended to encourage states to resolve controversial electoral outcomes prior to sending results to Congress in order to avoid the conflicts of interest and pursuit of partisan power that would likely occur if Congress were charged with resolving every election dispute.
Unfortunately, the text of the ECA is confusing and antiquated, which means the counting of electoral votes remains vulnerable to abuse by partisan actors. The ECA should be updated to provide clarity and security to this process. This should be a bipartisan priority, as such a change would not lead to any partisan advantage for either party. The winner of such critical legislation would only be American democracy itself.
Read more below about the Electoral Count Act and its need for improvement. Then let your members of Congress know that you are aware of this need and that you encourage them to call on their colleagues to take this up and, ultimately, support legislation. Talk about the ECA and the necessary updates with your friends and family, and then invite them to participate in this call to action as well. Follow MWEG for information about future events to learn more about this effort.
Why is the Electoral Count Act important today?
The language of the Electoral Count Act of 1887 is vague and outdated, leaving it vulnerable to abuse. The nonpartisan National Task Force on Election Crises has recommended that Congress update the ECA in order to preserve our tradition of peaceful transfers of power between presidents.
The events of January 6, 2021 were an organized attempt to take advantage of ambiguity in the law in order to override the counting of the electoral votes and manipulate the election outcome. Updating the ECA would help prevent a repeat of such events by, among other things, clarifying that neither the vice president nor members of Congress have the right to use federal authority to dismiss a state’s electors and substitute their judgement for the will of the people.
At this moment, having recently witnessed the confusion and disruption that ambiguity in the system can cause, we have the opportunity to improve the laws that guard our peaceful transfer of power.
What is the history of the Electoral Count Act of 1887?
Though the Constitution (in Article II, Section I, and in the 12th Amendment) governed the counting of electoral votes, it became evident after the presidential election of 1876 that these provisions were insufficient, on their own, to guide the states and Congress in certain situations.
The 1876 presidential election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden was one of the most controversial and disputed elections in our history. There was disagreement in four states (Florida, Louisiana, South Carolina, and Oregon) regarding who the official slate of electors included. Enough state electors were disputed that the resolution of this conflict would determine who was elected the next president. Ultimately, this constitutional crisis was overcome by the establishment of an electoral commission that purportedly helped to broker a compromise (though one that included the withdrawal of federal troops from the South).
However, the next two presidential election cycles also yielded results that were quite close. Congress decided additional legislation was necessary to ensure that a state was responsible for resolving its own electoral disputes. This was intended to constrain the role of the vice president and protect against the conflicts of interest that would arise if Congress became too involved in determining the outcome of an election, which could clearly lead to manipulation or abuse for partisan political advantage.
The Electoral Count Act of 1887 was therefore designed to specify the process by which a state should resolve internal disagreements about election results prior to sending its certified electoral votes to Congress for counting. Unfortunately, even contemporary observers recognized the bill’s shortcomings, with prominent political scientist John Burgess calling the text “very confused, almost unintelligible.”
What changes to the Electoral Count Act are proposed?
While legislation to update the ECA has not yet been introduced, there are a number of changes that have been proposed by the nonpartisan National Task Force on Election Crises. First, the ECA must make it clear that the vice president’s role in counting the electoral votes is only ministerial. In light of the events of January 6, it must be clarified that the vice president does not have the power to determine the result of the election by personally deciding which electoral votes are or are not acceptable. This protects elections from the vice president, and it also protects the vice president from the people. There is no constitutional precedent for any election in America being decided by one individual. Were this to be so, it would expose this individual to significant pressure, risk, and potential harm.
As it currently reads, the ECA is vague about what qualifies as an emergency situation, where a state could choose electors after Election Day. The ECA mentions a “failure” of a state’s election process, but it does not provide specifics about what timing would be allowed to resolve the issue. Such ambiguity is unhelpful and could be manipulated for partisan ends. Though the ECA mentions that state election results settled by the “safe harbor” deadline are “conclusive,” this provision should be strengthened with judicial enforcement. We must protect a state’s right to certify its own election results without fear of congressional manipulation.
At present, only one member of each chamber of Congress must object to counting electoral votes in order to disrupt the process. This is an incredibly low threshold. An updated ECA should raise the required threshold for objections and establish acceptable grounds on which an objection can be raised. For instance, while dislike of the election outcome should not be acceptable grounds for a member of Congress to challenge a state’s electors, evidence of an illegally selected slate of electors would be (i.e., a slate is submitted by the wrong state official in violation of state law). Grounds for objecting to electoral votes should be similarly narrow (e.g., an elector was bribed). This would also help members of Congress defend themselves against partisan pressure by clearly explaining exactly what they can and cannot do. It would also prevent one individual from disrupting the process out of spite or for personal or political gain.
Finally, the ECA should include dispute resolution guidelines for worst-case scenarios. The current ECA attempts to address such a crisis, but it leaves several gaps and inconsistencies. There must be a clearly established and definitive process for the resolution of many potential forms of a presidential election dispute. For instance, it must be clear what should occur if there is a deadlock between the two chambers of Congress over whether to count a slate of electors or which slate to count (if there is more than one from the same state).
Though we hope our elected officials will always uphold their oath of office (see MWEG’s first principle of ethical government), it is best if our democracy is protected from the abuse of power by established and clear law when possible. This would also have the vital benefit of increasing the public’s trust in our electoral processes.
Why should this be a bipartisan reform?
Updating the Electoral Count Act provides no partisan benefit. Instead, it instills trust by protecting peaceful transfers of power and ensuring the health of the American experiment in democratic governance. Polling shows that the majority of Americans support updating the ECA. However, to avoid the appearance of partisan advantage, a thorough clarification of the ECA should occur in a timely manner, before any political advantage emerges relating to the 2024 presidential election.
As MWEG’s principles of ethical government (PEG) 1b and 1c state: “Government officials and institutions should be honest and transparent, insofar as possible,” and “elected and appointed officials and government employees alike must eschew conflicts of interest and avoid the appearance of a conflict of interest in fidelity to the public trust.”
In addition to securing our democratic elections (PEG 2a), updating the ECA would bolster national security during a period of time that has historically been vulnerable. Like many countries, the U.S. is most at risk to foreign threats from our adversaries during times of transition. Our presidential transition period is long by most measures, as it was established during a period of our history in which traversing a large nation was difficult. In a modern age, this increases our national exposure to foreign risks if leaders do not accept defeat or work amicably to transition the government.
These unique circumstances require clear guidelines for behavior, making it crucial that electoral votes are counted in a timely manner and that the current and incoming administrations begin collaborating to ensure a timely and peaceful transfer of power. Furthermore, the chaos and uncertainty that would result from disputed election results and a precarious transition period would very likely cause economic instability. It is thus in the best interest of our nation and the American people to ensure that the ECA is updated in a clear and precise manner.
How can I help?
Let your members of Congress know that you are aware of this pressing need and want to encourage them to call on their colleagues to take this up and, ultimately, support legislation. Talk about the ECA and the necessary updates with your friends and family, and then invite them to participate in this call to action as well. Follow MWEG for information about future events to learn more about this effort.
