The Constitutionality and Continuing Risks of the Electoral Count Reform Act

Abstract

This Article examines the Electoral Count Reform Act, which Congress passed in late 2022 to repair the catastrophic vulnerabilities to political manipulation of the Electoral Count Act of 1887. It focuses on two prospective questions:

First, is the Electoral Count Reform Act constitutional? Some scholars and commentators questioned the constitutionality of the Electoral Count Act on numerous grounds, including whether it fell within Congress's enumerated powers and whether it impermissibly bound future Congresses. Most significantly, advisors to President Trump based their legal strategy leading up to January 6, 2021 on the purported unconstitutionality of the ECA. Many of the grounds for questioning the constitutionality of the ECA apply with equal force to the ECRA. In view of the risks that political actors will seek to flout the ECRA citing its alleged unconstitutionally, definitively settling that question in advance has considerable practical importance.

Second, is the Electoral Count Reform Act itself susceptible to political manipulation? As I explained in a prior Article, Disputed Presidential Elections and the Collapse of Constitutional Norms, the ECA was catastrophically vulnerable to political manipulation of the electoral count by Congress and, most dangerously, governor's. The ECRA was designed specifically to guard against that political manipulation. This Article explains why that reform is both admirable and incomplete. The ECRA makes manipulating the electoral count significantly more difficult for governors by explicitly subjecting the governor's certification to judicial review and then binding Congress to count only those electors' votes blessed by the courts. That partially defangs the most dangerous threat to the ECA, the Governor's Gambit. But threats remain. The Article exposes those continuing threats: The Recalcitrant Governor's Gambit, the Vice President's Sleight of Hand, and the Congressional Override. The Article concludes with straightforward amendments to the ECRA that would counter these continuing threats--to the extent that any statute can hope to counter bad faith and willful defiance of constitutional norms.

Keywords: Electoral Count Act, Electoral Count Reform Act, Constitutional Law, Election Law, Twelfth Amendment, Disputed Presidential Elections