Reforming the Electoral Count Act

I’ve written this essay for Democracy: A Journal of Ideas. It starts and ends with Odysseus and the song of the sirens. In the middle is an analysis of why Congress should constrain itself to accepting whatever results the courts reach concerning the appointment of a state’s electors based on a popular vote held in the state. It further explains why this self-constraint on the part of Congress suffices to handle the problem of “rogue” behavior by state officials, including state legislatures, who might wish to subvert the actual result of the popular vote in their state. This position, I believe, is what the current Electoral Count Act properly understood requires, given the “conclusive” effect that Congress is pledged to give any “final determination” of any adjudication pursuant to 3 U.S.C. 5. But members of Congress in recent elections obviously have not followed this understanding of the ECA, and thus revision in clear twenty-first century language to confirm this understanding would be a vast improvement over the current version of the statute.

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