Averting a constitutional crisis

The problem:

Congress passed the Electoral Count Act (ECA) of 1887 to provide the legal framework for counting electoral votes for president and vice president, set a timeline for selecting electors and transmitting their votes to Congress, define Congress’ role in counting electoral votes, and establish certain dispute-resolution procedures for the counting process in Congress.

However, because the law is outdated, serious concerns exist that one party in Congress could try to overturn the results of a future presidential election to put their own candidate in power — potentially creating a constitutional crisis. In the 2020 election, these issues exposed the nation to enormous risks. The ECA must be updated to eliminate gaps and ambiguities in the law.

America’s ability to elect a president and vice president fairly and peacefully every four years is a hallmark of our democratic system. But Congress has not updated the ECA since its enactment more than 130 years ago, and it no longer meets the needs of the modern age.

The ECA:

• Is rife with arcane language and ambiguities, allowing for multiple interpretations of key terms and provisions, and making it susceptible to exploitation
• Allows members of Congress too much latitude to try to override the will of a state’s voters
• Does not include a definitive process for resolving disputes surrounding Congress’s counting of electoral votes
• Leaves the nation vulnerable to future chaos because of an outdated law when a crisis is most dangerous — during a transition of power

Elections are decided by the American people, not politicians. To protect the will of the people from partisan power grabs in Congress, Republicans and Democrats in Congress must update to the ECA.

Solutions: 

Recently, a group of academic experts, litigators, and other non-partisan stakeholders came together to determine the best way to update the ECA. These changes are all consistent with Article II and the Twelfth Amendment, which define the respective roles of state and federal actors in presidential elections, and are consistent with the original intent of the statute.

To update the ECA, Congress should

1. Establish clear timelines and rules for the appointment of presidential electors: The ECA must clearly set the timing for states to appoint their electors and bar state legislatures from unilaterally appointing electors after Election Day. An updated ECA should also narrowly define the extraordinary emergency circumstances (for example, a terrorist attack or natural disaster preventing voting on a wide scale) under which voting might be extended beyond Election Day.
2. Ensure that states, not Congress, decide election results: The ECA should be updated to help resolve postelection conflicts before they reach Congress — crucial improvements to bolster the American people’s trust in the election results. An updated ECA should expressly recognize each state’s ability to adjudicate its own post-election disputes and limit opportunities for Congress to second-guess state determinations. At the same time, it should provide streamlined mechanisms for federal court review to resolve any questions as to the lawfulness of a state’s appointment of electors, including compliance with the Constitution and other federal law.
3. Clarify the role of the vice president: The ECA must make clear that the vice president’s role in the presidential election process (as president of the Senate) is limited and ministerial. It must be clear that the vice president does not decide election results and that no one involved in the process of counting electoral votes can substitute their own political preferences for the will of the voters.
4. Rein in the objection process: The ECA should require Congress to accept a state’s certified election results in all but the most extraordinary circumstances. The threshold for Members of Congress to be able to object to a state’s appointment of electors should be raised significantly, and the narrow grounds upon which Members of Congress may object to electors or their votes should be clarified.
5. Set out a clear process for resolving disputes in Congress: The ECA should be updated to establish procedures for dispute resolution in Congress — and, as a last resort, in court — as the final safeguards in extraordinary situations. Under no circumstances should the outcome of a presidential election be unclear because Congress is deadlocked with respect to whether or how to count electoral votes.

Learn more about our election administration work.