Constitutional conservatives, especially, should want Electoral Count Act reform, because they should be the first to understand that the law is plainly unconstitutional. Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states. In fact, the Constitution gives Congress no role whatsoever in choosing the president, save in the circumstance where no presidential candidate receives a majority of the electoral votes cast.
Trump acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law. They are also politically smart enough to understand that however likely it is that the Republican presidential candidate will lose in 2024, it is just as likely that he or she will win. Attempts to time reform based on handicapping the quadrennial presidential election are futile, and no Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.
If the Republicans want to prevent the Electoral Count Act from being exploited in 2024, several fundamental reforms are needed. First, Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.
Congress should also increase the number of members required both to voice an objection and to sustain one to as high a number as politically palatable. At the moment, only one member of each chamber is necessary to send an objection to the Senate and House for debate and resolution — an exceedingly low threshold that proved a deadly disservice to the country and the American people during the last election.
Currently, Congress has the power under Article II and the Necessary and Proper Clause to prevent states from changing the manner by which their electors are appointed after the election, but it has not clearly exercised that authority to prevent such postelection changes. It should do so.
Finally, the vice president’s important, but largely ministerial, role in the joint session where the electoral votes are counted should once and for all be clarified.
It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. Republicans and Democrats need to put aside their partisan differences long enough to fix this law before it enables the political equivalent of a civil war three years hence. The law is offensive to Republicans in constitutional and political principle, officiously aggrandizing unto Congress the constitutional prerogatives of the states. It is offensive to Democrats because it…
Read More: Opinion | The Conservative Case for Reforming the Electoral Count Act