“Congressman Hatton W. Sumners’s 1928 Amendment to the Electoral Count Act”

Josiah Daniel has posted this draft on SSRN. Here is the abstract:

Inspired by the April 4, 2022 issuance of “Principles for ECA Reform” by the working group convened by the American Law Institute, this paper makes three points. First, the history of the Electoral Count Act is longer than the working group acknowledged, dating from 1792, not 1887, and that history is essential to any attempt to understand the ECA. Second, the example of the previously unknown amendment made to the ECA in 1928 by Congressman Hatton W. Sumners of Dallas is important and useful to the project of considering reform or revision of the ECA. His amendment, known as House Bill 7373, was by far the most extensive of the limited number of post-1887 and 1888 amendments. Those 1887 and 1888 amendments had been inspired by the three months of controversy following the Hayes v. Tilden election of 1875. There was no such exigent imperative for Sumners’ proposal, but his legislation subserved the cause of “good government” and increased efficiency, transparency, and clarity in the interface between the Electoral College and the Congress. Third, while we do not know for certain, yet, the motivations and purposes of Sumners qua legislator of this amendment—the paper infers what those motivations were—, the specific legislative history of House Bill 7373 is interesting and useful.

The author concludes from the 1928 history that ECA revision may be possible, even today, if on a bipartisan basis, with a sponsor who is comfortable and capable of working with rational members of Congress across the aisle, and if the changes are in the nature of modernizations and tweakings of the Electoral College machinery. The paper closes with the hope that consideration of the history of the ECA will inform efforts to seek its amendment now.

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