CRISIS CONTROL: Why It May Be Time to Revisit the Electoral Count Act of 1887

Rioters storm the U.S. Capitol, Jan. 6, 2021. (AP Photo/John Minchillo, File)

On January 6, 2021, Congress gathered for what is typically a perfunctory task that attracts little public attention: the certification of electoral votes.

The procedure, however, had been thrown into national focus by the Trump campaign team who urged certain congressmen and former Vice President Mike Pence, who — who by dint of his office was tasked with overseeing the counting — to reject the results, citing what they claimed were egregious irregularities in vote tallies of several key states. Some of the former President’s legal advisors said that the Vice President could use his authority to invoke the 12th Amendment and leave the election’s determination to the House of Representatives, a scenario in which each state’s delegation would have one vote.

The former President’s team built up additional drama by staging its “stop the steal” rally as the session was held.

Ahead of entering the Capitol, Mr. Pence had already made clear that he did not believe he had the legal authority to do anything besides preside over the count; and that results of the election were a settled matter granting victory to President Joseph Biden.

With unclear intentions, several hundred of the thousands who gathered for the protest breached the Capitol and temporarily disrupted the count.

Once the violence had been quelled, the legislators and Mr. Pence emerged from the secure rooms they had been rushed to and certified the vote over the objection of some members of the GOP House caucus and two Republican Senators.

President Donald Trump speaks during a rally protesting the Electoral College certification of Joe Biden as president, on Jan. 6, 2021, near the White House. Some rally participants subsequently rioted at the U.S. Capitol. (AP Photo/Evan Vucci)

While the certification led to the same conclusion as in a more routine year, former President Donald Trump’s spotlighting the event and the riot that occurred around it shined a light on the obscure procedure.

Now, more than a year later, the idea of reforming the Electoral Count Act of 1887 (ECA), which shaped Congress’ role in certifying the electoral vote, has garnered bipartisan support. Beyond interpretations of what occurred on January 6, and the present partisan clash over broader efforts by Democrats to alter and federalize election laws, there is wide consensus that the law demands fixing.

“It obviously has some flaws. And it is worth, I think, discussing,” the Senate minority leader Mitch McConnell recently said of the law.

Democratic Representatives Zoe Lofgren of California and G. K. Butterfield of North Carolina are leading a group trying to craft bipartisan legislation that would shore up the ECA.

“Nearly a year ago, we witnessed firsthand some of our democracy’s most fragile moments. Undoubtedly, the events of January 6, 2021, exposed serious flaws in the Electoral Count Act of 1887. The ECA is antiquated, incomplete, and in dire need of reform,” the two said in a joint statement.

A ‘Hayesy’ Election and a Hazier Law

The ECA came to be as a result of another contested election almost 150 years ago.

In 1876, Democrat Samuel J. Tilden won the popular vote but both he and Republican Rutherford B. Hayes won 17 states’ electoral votes apiece with, Florida, Louisiana, Oregon, and South Carolina, ruled too close to call. A good deal of the inconclusive results in the three Southern states was blamed on efforts by Democrats to suppress black voters who tended to vote Republican. Southern Democrats were set on seeing Tilden in the White House, whom they expected would relieve the pressure Washington had placed on former Confederate states.

President Rutherford B. Hayes

As inauguration day neared, rival groups’ officials in each of the contested states authorized different slates of electors from opposing parties to select a new President. Facing an unprecedented crisis, Congress formed a 15-member commission with members from both houses and the Supreme Court to resolve the disputed election.

Ultimately, the commission voted 9-8 in favor of Hayes, along partisan lines. The impasse was solved, but Democrats were left feeling they had been disenfranchised by a partisan vote.

The fact that the nation came close to the brink of a serious succession crisis moved many to advocate for a law that would clearly set ground rules for who is authorized to appoint electors and what Congress can do when misdeeds are suspected. Yet their efforts were marred by Democrats who feared bolstering the federal government’s role in how state’s conducted elections was an imposition on state’s rights. The movement was further marred by many Democrats who were still bitter over the circumstances that brought Hayes to the presidency.

Over the next eight years, the Republican-controlled Senate passed several versions of a bill aimed at addressing the issue only to have them rejected by the Democratic majority House.

More than 10 years later, in 1887, the Electoral Count Act was passed as a compromise that laid out procedures and deadlines for resolving disputes.

“They wanted to do something to avoid having to set up a separate commission like in 1877,” said Thomas A. Schwartz, professor and director of Undergraduate Studies for the Department of History at Vanderbilt University, an expert in presidential history. “The idea was to set a timetable to let states determine electors. It was a compromise shaped by their inability to agree on what they wanted. In the end they mostly deferred to the states but gave Congress modest ability to intervene in certain specific cases.”

Scholars long complained that its provisions were murky and feared that the ECA could be twisted by battling sides in a disputed election, but until 2020, those concerns went untested.

“Most historians think it was a narrow fix, not meant to be a lasting contribution, and there’s been a bit of discussion about the sloppy or vague language,” said Professor Schwartz.

Guardrails Become a Weapon

In order to forfend a repeat of 1876, the application of the ECA created “safe harbor” status for state election results, meaning that if a state finalizes its results six days before the electors meet, Congress must view that as conclusive, closing the door to alternate submissions.

Samuel J. Tilden

Secondly, it creates a procedure for Congress to object to a state’s results. If an objection is endorsed by one House member and one Senate member, they can force each house to break up and debate the matter separately, causing delays.

Despite the law’s obtuse language and several open ends, electoral vote counts were basically ceremonial and remained little more than a curiosity for more than 125 years after the ECA’s passage. One changed elector vote in the 1969 election forced both houses to go into recess, but the matter was easily resolved.

It was first in 2000 that the ECA became a political stage. After the acrimonious fallout of the Bush-Gore race, and the Supreme Court decision that stopped Florida’s recount, several Democrats in Congress used the law to object to the results.

“Bush-Gore placed greater attention on post-election disputes and litigation. It made it much more of a possibility for both sides to see the count as a forum — I would add an inappropriate forum — to make political points,” said Michael T. Morley, a professor at the Florida State University’s College of Law and an expert in election law.

The trend continued and, after the 2004 election, some Democrats’ objections to what they claimed were irregularities in voting in Ohio, where former President George W. Bush narrowly bested opponent John Kerry, caused the session to recess. The objections were easily overruled, but after the 2016 election, some Democrats again objected to the count that certified Mr. Trump as the victor.

Still, it was not until 2020 that shoring up the law became a priority to some.

“A lot of why things have gone smoothly until now is fortuitous and was a matter of who was controlling Congress,” said Professor Morley. “It’s not clear what would have happened in 2000 if the Democrats controlled Congress or if the GOP had both chambers in 2020.”

A New Electoral Map

Some of what is seen as a need to revise the ECA stems from changes in American laws and elections that have occurred since its drafting in the 1880s.

Professor Schwartz said that one somewhat ironic factor that exposed problems with the law is that the nation once again commonly sees close elections like those that proceeded the bill’s passage.

“We’re back in a period of narrowly decided elections in a way that has not been characteristic,” he said. “Since 1960, there were mostly decisive elections that didn’t make the Electoral College’s role in general as central.”

Another factor is that the plethora of federal election laws and Supreme Court decisions related to voting has expanded the grounds for challenges to results many times since 1887.

Presidential candidates Al Gore (L) and George W. Bush at a debate Oct. 17, 2000. (AP Photo/Ed Reinke, File)

“The time of the Electoral Count Act was before the 20th century case law expanding voting rights, before a lot of federal statutes like the National Voter Registration Act. That legal background creates a lot of different possibilities of grounds for a federal lawsuit,” said Professor Morley.

The broadened understanding of the right to vote, in federal law, created unaddressed questions about what and when a state’s results should be considered to have reached their safe harbor. While none of Mr. Trump’s legal challenges in 2020 were accepted by courts, new claims were still being advanced as the safe harbor was declared.

“When the ECA was adopted, there were virtually no ways of challenging an outcome on federal grounds,” said Professor Morley. “The ECA says that if a state made its determination that it gets safe harbor status, what can deprive a state of calling its results final? If a campaign is filed in the Supreme Court, is that enough?”

The power the ECA gives individual congressmen seemingly assumed that the power to object would not be used frivolously. Yet, as objections have become a political tool over the past 20 years, many experts say another fix the statute needs is a way to set the bar higher on allowing members to interrupt the process.

The VP Comes Into Focus

Given Mr. Trump’s calls on Mr. Pence to use his role overseeing the vote count to overturn the 2020 election and the mobs’ calls of “Hang Mike Pence” in response to the former Vice President’s statement that he lacked the authority to do so, the area that many feel needs the most clarification is the role the Vice President takes in the process.

The law says that the “President of the Senate (a position held by the Vice President) shall be their presiding officer” of the count and that it is the VP’s job to receive certificates, announce votes, and call for objections.

Vice President Mike Pence during the certification of Electoral College ballots in the presidential election, in the House chamber at the Capitol, Jan. 6, 2021. Shortly afterward, the Capitol was stormed by rioters determined to disrupt the certification. (AP Photo/J. Scott Applewhite)

Professor Morley says that there is not a reading of the law that grants the Vice President any role beyond that of an overseer.

“There is no set of circumstances where a Vice President can categorically reject a vote,” he said. “If anything, the ECA says the Vice President is required to present any votes purporting to be a slate of certificate. That tends towards the opposite direction.”

While there is wide agreement that little room existed for Mr. Pence to have intervened in the election count, given the pressure that was placed on him, those calling for reforms to the ECA want to spell out the Vice President’s role in clear terms.

“What came through in 2020 was this idea that there were provisions that at least seemed vague about the role of the Vice President,” said Professor Schwartz. “It’s probably worth making clear that the Vice President’s role is only ceremonial and to draw the limits of challenges from Congress or political party challengers.”

Professor Morley said that once the Vice President’s role is being revisited, it would be worthwhile to rethink what powers he should ideally have over the process.

“It needs to be clarified what type of determinations he can and cannot make,” he said. “Are the Vice President’s actions binding or advisory? Are they subject to being overturned?”

A Search for Solutions

If legislators indeed take on the task of revisiting the ECA, the essential question will be how much latitude they want Congress to have in questioning a state’s election results.

An opinion piece in The Washington Post by four prominent constitutional scholars from different sides of the political divide called for the statute to hone as close as possible to the concerns it was created to address. The piece asks Congress to “disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed” except in cases where different authorities in a state submit dueling slates of electors, as occurred in 1876. The article goes on to say a revamped ECA should clearly define which state authority (Governor, state supreme court, Secretary of State, etc.) is considered “authoritative” should such a scenario occur.

Some others differ with this last suggestion and say that the statute should require states themselves to determine who holds that authority.

“It’s an issue for states to work out themselves,” said Professor Morley. “This is where federalism comes into play and where different states’ political cultures or population dispersions might make some options make more sense in some states and less in others.”

While the events of 2020 swayed some to argue that an updated ECA should state that Congress’ vote count is little more than an official stamp, others want it to retain or even expand its role as a last check in a contested election.

“The hard question is, do we want to totally bind Congress no matter what a state submits that they have to recognize it, or, if something egregious enough goes on, do we want to leave Congress some slight degree of flexibility to call it out and not to accept?” asked Professor Morley. “The problem is once you create that valve, how can you make it narrow, but leave a crack in the door that can’t be exploited?”

Embracing a ‘Veil of Ignorance’

Even with wide consensus that the ECA needs repairs, political gaming could hold back lawmakers from pursuing a fix.

While Republicans have shown interest in working with the group of Democrats who want to address the law, Democratic leaders have repeatedly shot down discussion, dismissing the movement as an attempt to diminish the party’s broader voting law initiative.

“I think this is a fake,” was Senate Majority Leader Charles Schumer’s response when asked about it. He went on to paint ECA reform as a GOP plot to derail his party’s efforts to federalize election laws. In a floor speech he called the effort to address the ECA “unacceptably insufficient and even offensive.”

White House Press Secretary Jen Psaki’s response was less vitriolic, but along the same lines, saying that ECA reform “is not a substitute for the protections that are included in the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.”

Professor Schwartz said that, especially given the fact that Democrats presently lack the votes needed to accomplish their broader goals, it would be prudent for them to take “half a loaf” and endorse reforming the ECA.

“The electoral results of 2020 were really close, and we dodged a bullet by avoiding an electoral tie, but we’re still playing with fire and need to make sure the system has more safety walls,” he said.

Professor Morley said that the present moment, with bipartisan support for addressing the ECA, and more than two years until the next presidential election, presents an important opportunity for lawmakers.

“It should be a non-partisan good government issue,” he said. “Everyone agrees that we should have elections and the rules for those elections should be set ahead of time when neither party knows what will be to their advantage, rather than leaving it for Congress in the middle of a dispute when one candidate stands to benefit. It’s always better to do these things under the veil of ignorance.”

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