by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The American presidential-election system is purposely decentralized: Popular votes are counted and electors are awarded at the state level, and Congress then tallies the votes, with the vice president presiding. Contests over which votes to count are handled by state elections officials and state and federal courts. Congress reserves the power to resolve serious disputes over who won a particular state, but has attempted since the 1887 passage of the Electoral Count Act to provide clear rules of the road so that such disputes are resolved well before they reach Congress.
This system held up under enormous stress created by Donald Trump’s challenge in 2020. Its success in surviving that test cautions against radical change. But 2020 revealed ambiguities and vulnerabilities that could be reduced by prudent reform, in order to prevent a repeat of January 6. We have previously urged Republicans in Congress to support such reforms.
Now, a proposed bipartisan bill, the Electoral Count Reform Act, is on the table. With nine Senate Republican co-sponsors and the support of key Democratic moderates, the ECRA stands a serious chance of passage and has apparently sidelined a more ambitious bill being developed by Senator Amy Klobuchar. The ECRA is not perfect, and it could use some improvements to its language, but it deserves Republican support.
First, the ECRA effectively adopts James Baker’s mantra from 2000 as federal law: States cannot change the rules after Election Day. Pursuant to Congress’s Article II power to “determine the Time of chusing the Electors,” it provides that electors “shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” This would explicitly bar state legislatures from overriding an Election Day popular vote by meeting after Election Day to appoint their own electors. It would also strengthen the case against judges writing creative new rules after an election.