Matthew Seligman on Electoral Count Act reform:
This Article exposes the vulnerabilities of the legal framework governing Congress’s role in resolving disputed presidential elections: the Electoral Count Act of 1887. The constitutional and statutory framework for resolving such disputes remains largely untested in courts and only inconclusively examined by scholars, even after the calamitous events of January 6, 2021. That unsteady legal foundation could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball. The Article provides a comprehensive account of the vulnerabilities in current law that leave the process susceptible to election subversion and a detailed analysis of how the law might be modernized to steel it against that manipulation in a time of collapsing constitutional norms.
The Article first illustrates just how easy it could be for unscrupulous political actors to reverse the results of a presidential election by exploiting the Act’s weaknesses. It maps out the ways in which political actors playing constitutional hardball could manipulate the results of an election while staying within the strict bounds of the written law by abandoning informal constitutional norms. The Article then offers a blueprint for a redesigning the law to protect the process of presidential elections, as well as it can, from that exploitation. It analyzes the many choices Congress faces in crafting such a law, including how to allocate legal authority among states, Congress, and courts, and how to design dispute resolution procedures in Congress when it counts the votes in the Electoral College. The exceptional nature of that problem, in which states, Congress, and the Vice President play sui generis roles not found elsewhere in the architecture of the Constitution, requires a unique legal framework that poses unprecedented constitutional questions. The Article therefore considers the constitutionality of critical features of the proposed Act, addressing arguments arising from the political question doctrine, the separation of powers, the Electors Clause, and other constitutional provisions.