Republicans in Congress Should Update the Electoral Count Act Before It’s Too Late

D onald Trump should want the Electoral Count Act of 1887 amended. And he should want it done even though his some of his Democratic opponents may want the same thing.

Designed to govern Congress’s tabulation of Electoral College votes — including disputes between the chambers — the aged law is a swamp of ambiguity. Its byzantine, vague, and muddled provisions do not provide sufficient answers to crucial questions that could arise in a genuinely close election. Despite the fact that the former president’s attempts to exploit those shortcomings failed in 2020, he and all Republicans should be haunted by the blueprint that he has created for his opponents if he were to run for office again in 2024.

Republicans should not deceive themselves by thinking the current state of this law automatically works to their advantage. While many of them used it offensively on January 6, 2021, they did so because they were trailing in Electoral College votes. They poked at real flaws, and while not successful because the vice president rebuffed Trump’s legally unsupportable command that the states’ certifications be rejected, Republicans did show how the system can be maneuvered.

Republicans should be in favor of clarifying the system now, if for no other reason than they will not be in as strong a position as they were in 2020.

For starters, a Democratic vice president will be presiding over the Senate when the Electoral College votes are opened. Suppose Trump runs again, and wins. Now, suppose Vice President Harris believes that Trump’s reelection represents an existential threat to the county and does what Trump couldn’t persuade Mike Pence to do.

As of now, neither party can know whether its presidential candidate will be ahead or behind in Electoral College votes or whether it will control the Senate and House in January 2025 to resolve Electoral College vote disputes in its favor. And Trump will not be the commander in chief in 2024 able to wield the threat of invoking the Insurrection Act as a not-so-subtle inducement to —and cover for — allies in Congress if he doesn’t like the way the electoral-vote count is going.

Neither party should think that it can game the system by using the ECA. In fact, of all people, Donald Trump should realize that what goes around often comes around. What seems advantageous in one electoral context often creates unintended consequences down the road.

Recall, for instance, former President Trump’s 2020 attacks on “election fraud,” which doubtless contributed to Republicans losing both of Georgia’s runoff elections and control of the U.S. Senate.

Or take the case of Massachusetts Democrats, who in 2004 stripped Republican governor Mitt Romney of his power to appoint John Kerry’s Senate replacement. Although the law was unnecessary because Kerry lost the presidency and remained in the Senate, six years later, with a Democrat as governor, that same law forced a special election won by Republican Scott Brown and costing Democrats a U.S. Senate seat.

Consider, too, that Democrats who have advocated redistricting commissions in various states have found themselves politically disadvantaged by their “reform.” And there’s considerable evidence the supposed nirvana of small-dollar donors to political campaigns has instead led to increased noxious and polarizing rhetoric with the most extreme solicitations generating the most contributions.

I experienced firsthand the dynamics of a close election when I worked on the 2000 Florida recount. I witnessed, too, how prolonged, messy election disputes can affect the winner’s ability to govern. We were fortunate as a country that the 2000 participants recognized that after the recounts, contests, and certification by the states that the winner was the one with more votes and spared the country prolonged attacks on the electoral system. And we were fortunate that the 2020 election was not so close. An extended fight over the imprecise — and therefore highly maneuverable — words of a late-1800s could be disastrous for our democracy.

As an essential democratic safeguard, the ECA will likely frustrate that fundamental purpose if ever put to an electoral stress test. It’s in both parties’ interests to fix its flaws. A bill updating and clarifying the ECA could be election-related legislation on which the parties agree.

How, then, should we go about fixing the ECA’s flaws? I propose that the law should be amended to define clearly:

• The vice president’s role;
• the congressional process for deciding between competing slates of electors from the same state and who each state’s “executive” is — i.e., the party that will maintain the power to certify the slate of electors (a governor and secretary of state from different parties could each claim they are the “executive”);
• whether a “majority” of the Electoral College is all 538 electors or only those present and voting;
• if choosing the president fell to the House, with a single vote for each state, could a majority of members prevent the swearing-in of minority of members (who nonetheless represented more states, as was the case in 2020) so that the majority’s presidential candidate would win;
• whether a state can hold an election after Election Day if it claims that Electoral College results were tainted;
• the “safe harbor” provision so that a state certifying its electors before that date cannot later have its decision usurped by Congress;
• whether the threshold for objecting to electors should be increased to more than one member from each chamber;
• grounds for congressional objections to electors so that only questions of fraud or bribery meet the threshold and disagreement with the popular-vote results does not; and
• rules for resolving disputes between the chambers so that split control of Congress does not cripple the nation.

Republicans and Democrats are divided on seemingly every issue related to managing our elections. But clarifying these ECA provisions is in everyone’s interests, would reinforce the appropriate role of states in conducting and determining their own elections, and would make it harder for politicians to substitute their partisan preferences for the will of the voters.

Neither Donald Trump nor members of either party can accurately predict what will be to their advantage the next time the ECA becomes crucially relevant. Providing clarity would be in the nation’s interest.

The time to act is now.