The Case for Reforming the Electoral Count Act

The Electoral Count Act of 1887 dictates the congressional procedure for certifying electoral college results in a presidential election. The Act was passed in response to the presidential election of 1876—where Democrat Samuel Tilden won the popular vote, but lost the presidency to Republican Rutherford B. Hayes because of contested results in three states—in an effort to avoid future contested elections But a large bipartisan group of election law scholars and politicians across the political spectrum have argued that the law creates more confusion and needs to be reformed. Today on We the People, we’re doing a deep dive into the Electoral Count Act and proposals for fixing it—which have gained traction after the events of January 6, 2021, when members of Congress challenged the electoral slates of several states and some, along with President Trump, asked Vice President Pence not to certify these votes, which would have switched the presidential election results from Joe Biden to Trump.   Joining host Jeffrey Rosen are two election law experts who co-authored an op-ed in The Washington Post titled “How Congress can fix the Electoral Count Act. Ned Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, and he also directs its election law program. Brad Smith is the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School. And from 2000-2005, he served on the Federal Election Commission.   The National Constitution Center relies on support from listeners like you to provide nonpartisan constitutional education to Americans of all ages. In honor of the 234th anniversary of the ratification of the U.S. Constitution, every dollar you give to support the We the People podcast campaign will be doubled with a generous 1:1 match up to a total of $234,000, made possible by the John Templeton Foundation! Visit www.constitutioncenter.org/we-the-people to donate, and thank you for your crucial support.   Questions or comments about the show? Email us at [email protected]. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.