Correcting Misconceptions About The Electoral Count Reform Act

A bipartisan group of legislators has announced the Electoral Count Reform Act (ECRA) that seeks to prevent future misconduct by political actors seeking to undermine the electoral count process for their own benefit. This article by Bob Bauer, Jack Goldsmith is published by Lawfare. Here is an excerpt:

The Electoral Count Reform Act (ECRA) recently introduced by a bipartisan group of senators is an exceptionally promising development in our polarized era. It has been apparent for a long time that the Electoral Count Act (ECA)—the 1887 law designed to ensure that presidential elections operate with integrity, and that this bill would replace—is flawed. These flaws were on full display during the counting of electoral votes in 2020-2021, but all of the flaws had historical precursors.

The ECRA addresses and resolves these flaws in thoughtful ways that should—as they did within the group that produced the bill—attract bipartisan support in Congress. The bill gives full effect to state laws governing presidential elections that are in place on the date of the vote; eliminates (to the extent possible through legislation that rests on a strong constitutional foundation) the tools available to rogue actors to disregard the results of those elections after the fact; imposes duties on state officials and judicial review processes that serve as meaningful and effective checks should rogue actors nevertheless attempt to disregard or cast aside election results; and narrows congressional prerogatives to disregard legitimate electors chosen in state elections. In short, the bill helps to ensure that the president and vice president are chosen by the voters in accord with the state law that governed the election, and not via postelection manipulation—in Congress or the states—of the presidential elector process.

There will doubtless be reasonable proposals in the weeks ahead for changes to strengthen or clarify provisions of this draft. It will be important to distinguish those proposals from misguided criticisms of the core design. In the last days, amid the widely favorable reception of the bipartisan group draft, we have seen the emergence of such criticisms as well. 

Read the full article here.