The Conscientious Congressman's Guide to the Electoral Count Act of 1887
84 Pages Posted: 11 Sep 2008
Date Written: July 2004
Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. Yet, it is one of the least understood aspects of our constitutional order.
The Electoral Count Act of 1887, which governs Congress's electoral vote counting process, lies at the heart of this confusion. During the 2000 presidential election dispute, for example, politicians, lawyers, commentators, and Supreme Court justices seemed prone to misstate or misinterpret the provisions of the law, even those that were clear to the generation that wrote it.
The purpose of this Article is to explain the provisions of the Electoral Count Act of 1887 as it was understood by the Congresses that debated and enacted it. This article explicates the Electoral Count Act through a comprehensive exploration of its legislative history, the history and theory of electoral vote counting, and the legal and political assumptions of the Congresses that framed it. This Article also develops its understanding of the ECA by analyzing the interplay between the Act's various substantive sections and between the its substantive and procedural provisions.
Keywords: constitutional law, elections, electoral votes, presidential elections, Bush v. Gore, Electoral Count Act
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