Congress Must Amend the ECA

by Nicholas Schade ‘23

On Wednesday, both Senate Minority Leader Mitch McConnell and Senate Minority Whip Jon Thune expressed desires to work on revising one lesser known but seriously flawed presidential election certification law: The Electoral Count Act of 1887 (ECA). This law determines on what grounds members of Congress can object to state results, but it’s vague words allowed for misinterpretation by President Donald Trump and his allies during their attempts to overturn the 2020 election. To prevent Trump or other politicians from manipulating Congress to sway future presidential elections, the ECA must be updated with specific checks on power.

Firstly, a revised ECA should explicitly define the vice president’s role as solely an overseer of the certification process. Its current failure to clarify such bolstered Trump’s false claims that Vice President Mike Pence could overturn state results on January 6. Secondly, the ECA allows for Congress members to debate state results as long as one member from both chambers agrees to do so, and its grounds for making objections are unclear. This criteria should be raised, as it allowed 147 Republican Congress members in 2020 to contest legitimate voting results from Arizona and Pennsylvania. Finally, the ECA’s “safe harbor” period, which protects elector slates from legal disputes if submitted by states six or more days before the Electoral College convenes, should also exempt them from Congressional debate.