Steven Bradbury, who headed OLC during President George W. Bush’s second term and served as General Counsel of the Department of Transportation in the Trump administration, has written on Substack an extensive analysis of constitutional and statutory issues relating to Electoral Count Act reform. Its bottom-line conclusion:
“Happily, there’s bipartisan legislation currently pending in the Senate that would achieve all of these needed reforms: the Electoral Count Reform Act of 2022, co-sponsored by Senators Susan Collins and Joe Manchin.
Congress should move this bill forward at the earliest opportunity so that updated electoral count procedures are in place well in advance of the 2024 Presidential election.”
I highly recommend reading the whole essay, which presents the relevant issues thoroughly and accessibly, in a style that is very reader-friendly. (I only wish there were links or citations to some of the sources; in this respect, it’s more like a New Yorker article than a law review essay.) From my own research and analysis of the topic, I think the piece does a particularly good job on these key points:
- analyzing the constitutional ambiguity caused by the use of the passive voice in the Twelfth Amendment, and ascribing the most sensible construction of that ambiguity in light of the relevant constitutional history, especially the period between the adoption of the original Constitution and the ratification of the Twelfth Amendment.
- explaining why a sound interpretation of the relevant constitutional provision entitles Congress to invoke the Necessary & Proper Clause to enact a statute that clarifies and implements the Twelfth Amendment, consistent with the basic constitutional framework that Article II and the Twelfth Amendment establish (as supplement by subsequent constitutional provisions, including the Fourteenth Amendment);
- showing how the 1887 Electoral Count Act fits within that constitutional framework but urgently needs revision because of its now-antiquated and convoluted language, as well as misunderstanding and abuse of its provisions in recent years, most especially by the efforts of Trump and his allies;
- and detailing how the proposed Electoral Count Reform Act appropriately revises and updates the 1887 Act, especially to take account of the changing relationship between state and federal court litigation over vote-counting disputes, including Bush v. Gore.
For anyone, especially members of Congress, who might be harboring any lingering doubts on any of these matters, this essay is a very timely and valuable contribution to the topic of ECA reform.