“Correcting Misconceptions About the Electoral Count Reform Act”

Bob Bauer and Jack Goldsmith, at Lawfare, have a comprehensive, organized, and point-by-point response to various critiques of the bipartisan Senate ECA reform bill that have emerged since the bill was introduced on Wednesday. Anyone interested in this topic is encouraged to read the entirety of their thorough analysis (which is available to all), and thus I won’t endeavor to excerpt it here. Rather, to set their Lawfare piece in the context of analysis of the ECA reform bill that has appeared on ELB over the last few days, I’ll simply note that the piece itself links to a number of items that, in its own words, it “builds upon,” including the joint ELB blog post of which I was a part, as well as additional analysis from Derek Muller, as well as one of Derek’s relevant law review articles.

Jack’s and Bob’s Lawfare analysis also fully accords with a couple of additional ELB posts I’ve done in the last few days, including one that focuses on the bipartisan bill’s welcome replacement of the “failed election” provision of 3 U.S.C. 2, and another that explains why the obligation of Congress to accept as “conclusive” the appointment of electors that conforms to the rule of law, as enforced (if necessary) in state and federal courts, is the essential core of the bipartisan bill. Indeed, Jack and Bob make it their mission to defend the bill’s “core design” and leave for potential legislative consideration the possibility of some technical adjustments that would even better achieve the fundamental goal of presidential elections based on law (“not via post-election manipulation”) that the bill is already well-tailored to serve.

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