The Only Real Electoral Count Act Reform Is Repeal

Most conversations about Electoral Count Act reform begin with the wrong question. They ask how many members of Congress should have to object before a state's electoral votes can be challenged. They ask whether the vice president's role is "ministerial" or something more ambitious. Those are procedural patches on a constitutional wound.

The question no one in Washington wants to ask is simpler: Why does Congress have a veto over a state's certified presidential electors at all?

The Constitution never granted that power. The Electoral Count Act of 1887 invented it. And the 2022 "reform" passed after January 6 did not remove the veto-it made it slightly harder to trigger while leaving the unconstitutional mechanism in place.

A principled originalist who takes federalism seriously would not tinker with the threshold. He would repeal the Electoral Count Act and return to the plain words of the Constitution.

The Constitutional Text Is Clear

Start with the actual text. Article II, Section 1 gives the power to appoint presidential electors to the states: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…" That is not a grant to Congress. The manner of appointment belongs to state legislatures, not to a transient majority in Washington. If Congress can overrule a state's appointment after the fact, then the state's power under Article II means almost nothing.

The Twelfth Amendment then tells us what happens after the electors meet, vote, and certify their votes. The electors transmit their certificates to the President of the Senate. Then, in the amendment's words: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted."

Notice what the text does not say. It does not say Congress may judge whether the votes were "regularly given." It does not say the House and Senate may vote to reject a state's certificate. It does not create a national board of election appeal.

Counting is not judging. Opening a certificate is not reviewing a state's election law.

The Framers knew how to give Congress the power to judge an election. Article I, Section 5 says: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."

For presidential electors, there is no equivalent grant. That omission is not oversight. The Framers deliberately refused to make Congress the judge of a state's presidential election. They understood what that would do: it would turn every close presidential contest into a partisan vote on the floor of the House and Senate.

Justice Scalia spent his career reminding us that the Constitution means what its words meant when they were ratified. That originalist discipline matters here. The text gives Congress a ministerial job-open, count, announce. It grants no power to reject a state's certified result.

A Power Grab from the Start

The Electoral Count Act of 1887 grew out of the Hayes-Tilden crisis of 1876, when disputed returns from several states threw the presidential election into chaos. The country needed a clear process. What Congress produced was not clarification. It was self-empowerment.

Under the 1887 law, if a member of each house objected to a state's electoral votes, the House and Senate would withdraw and debate separately. If both houses agreed by a simple majority, the challenged votes could be rejected. Let that sink in: a bare majority in Congress could erase the electoral votes of an entire state.

That was an extraordinary arrogation of authority. The Constitution makes state legislatures-not Congress-the source of a state's Electoral College delegation. Once a state has appointed its electors in the manner its legislature directed, and once those electors have voted and certified their votes, the national legislature has no enumerated power to erase that act.

The 1887 law did not prevent disputed elections. It moved the dispute from state capitols and state courts to the floor of Congress, where the stakes are higher, the temptations are partisan, and every faction sees a chance to win the presidency by procedural motion.

This is precisely the factional danger James Madison warned about in Federalist No. 10. A faction in Congress that refuses to count a state's votes is far more dangerous to a constitutional republic than a local election dispute. The whole design of the presidency-which Alexander Hamilton defended as a mode of appointment that would avoid the political intrigue of legislative selection-was meant to keep the choice from becoming a prize to be captured by congressional majorities.

Power once claimed does not sit idle. For more than a century, the Electoral Count Act has sat there like a loaded gun, waiting for a partisan majority to pick it up. On January 6, 2021, the country saw how close that danger came.

The 2022 Reform Kept the Wound Open

After January 6, Congress passed the Electoral Count Reform Act. Some of what it did was useful. It made clear that the vice president has no independent power to reject electoral votes-a clarification the Constitution already supplied. It raised the threshold for forcing an objection from one member in each house to one-fifth of each house.

But notice what it did not do.

It did not remove the power of Congress to reject a state's certified electors. It left in place the central mechanism: if both houses agree by majority vote, they may still refuse to count a state's electoral votes. Raising the threshold from one member to one-fifth is not a conservative fix. It is a procedural compromise that legitimizes an unconstitutional veto. If the power is illegitimate when triggered by one member, it is illegitimate when triggered by eighty-seven.

Worse, the 2022 law layered a federal expedited-review process on top of state election disputes. That pulls controversies out of state channels-where the Constitution leaves them-and into Washington's federal courts. A conservative who believes in federalism should recoil at that. It is central planning with a robe.

Here is the irony: after an attack on the Capitol that came from Congress's claim to judge electoral votes, Congress responded by keeping the power to judge electoral votes and adding a federal court safety valve. The disease was not treated. It was made more respectable.

What the Constitution Actually Requires

The honest process is not complicated.

States appoint electors as their legislatures direct. State officials administer the election under those legislative rules. State courts apply state law when disputes arise. The state then sends one certificate of ascertainment to Washington.

The President of the Senate opens the certificates in the presence of both houses. Tellers count the votes. If a candidate receives a majority of the electoral votes, he is elected. If no candidate receives a majority, the House chooses the President from the top three candidates, with each state casting one vote-exactly as the Twelfth Amendment provides.

There are no floor debates about whose votes were "regularly given." No motions to reject Pennsylvania or Arizona. No federal three-judge panels second-guessing a state's election code. Count the votes, then go home.

If a state genuinely cannot produce a valid certificate because its own process collapsed, the remedy is the Twelfth Amendment's fallback. If no candidate reaches 270 because a state's votes cannot be counted, the House chooses. That is the constitutional safety valve-not a congressional veto.

This preserves the republican structure. The states are not administrative districts of the national government. They are sovereign partners in the federal design. Their electoral votes are not merely advisory until Congress approves them.

Answering the Fraud Objection

The objection I hear most often is this: "What if a governor or legislature tries to submit a fraudulent slate? Doesn't Congress need the power to stop it?"

No. The Constitution already supplies the protections.

State law governs the appointment of electors. State courts can enforce that law. If a governor certifies electors contrary to a final state court ruling, that is a state-law violation with state-law remedies. Congress is not the national fraud police, and it was never meant to be.

Think like Hazlitt here. The visible short-run benefit of letting Congress reject electors is the illusion of a final safeguard against fraud. The unseen long-run cost is permanent temptation: whichever party controls Congress can invent a reason to reject votes it does not like. That is the broken window fallacy applied to election integrity. We fix the broken window and ignore the structure Congress is burning down.

The fraud argument also cuts both ways. On January 6, the very people who wanted Congress to reject slates from Arizona and Pennsylvania claimed they were defending election integrity. Once Congress asserts the power to judge a state's electoral votes, both parties will eventually use it. The only stable line is the constitutional one: Congress counts; it does not judge.

If a state's process is corrupt, let the people of that state fix it through their own courts, their own legislature, and ultimately their own votes. The remedy for a questionably certified slate is not to put 535 politicians in Washington in charge of deciding which Americans' votes count.

A republic that permits a national majority to disenfranchise a state on a partisan vote is not a republic of laws. It is a pure majority-rule machine of the worst kind-a government powerful enough to override federalism, state sovereignty, and the constitutional text in one afternoon.

Real Reform Is Repeal

If Congress truly wants to prevent another January 6, the solution is not to rewrite the rules of the joint session again. It is to pass a short, clear statute that restores the original design: the President of the Senate shall open the certificates; the votes shall be counted; and if no candidate has a majority, the House shall choose the President under the Twelfth Amendment.

No objections. No rejections. No federal court review of certification. Let the states count their own votes.

The Electoral Count Act has been a standing invitation for Congress to overturn a presidential election. The only honest reform is to repeal it. Everything else is just moving the furniture while the constitutional fire still burns.

The issue is not which threshold for objection is safest. The issue is whether America still believes in its own founding architecture. The Founders designed a presidential election that would run through the states, not through a vote of the House and Senate. Every layer Congress adds to that process is a layer of unaccountable power between a free people and their chief executive.

Repeal the Electoral Count Act. Let the Constitution count.