Reforming the Electoral Count Act – Press Release

City Bar statement calls reforming the act “a welcome remedy to prevent its future use to undermine Presidential election results”

In a statement issued today, the New York City Bar Association calls reforming the Electoral Count Act (ECA) “a welcome remedy to prevent its future use to undermine Presidential election results.”

Enacted in 1887 to resolve uncertainties around the counting of electoral votes arising from the disputed Hayes-Tilden presidential election of 1876, “the ambiguously worded ECA obfuscates the procedure,” the City Bar states. “The ambiguous language of the ECA has resulted in widespread confusion, as evidenced in 2000 during the Bush-Gore election (relating to the implementation of its ‘safe harbor’ provision) and in 2021 when former President Trump and his supporters attempted to transform the ministerial role of the Vice President into a discretionary act to overturn the election of President Biden. Although that effort failed, it brought to light the ambiguities and inconsistencies in the ECA.”

The City Bar urges revision and clarification of the ECA, including in the following respects:

• Clarify that the Vice President’s role in receiving and counting electoral ballots is ministerial.
• Clarify that the role of Congress in its January 6th joint session proceedings is ministerial.
• Clarify that any role that Congress plays in challenging the legitimacy of a state’s electoral delegation in the course of the January 6th joint session proceedings is strictly limited to specified exceptional circumstances (which the City Bar sets forth in its statement).

The City Bar recommends that any objections to a state’s electoral delegation should require the support of at least one-third of each house of Congress in order to be cognizable, and a supermajority of both houses to be sustained, and that objections on the basis of the vague grounds of “fail[ure] to make a choice” (3 USC Sec. 2) and “failed election” as grounds for objection should be expressly disallowed. 

In reiterating its rejection of the “independent state legislature” theory, as explained in its “The Consent of the Governed” report, the City Bar states that any ECA reform should include a provision making clear that a state legislature may not substitute its judgment for that of the state’s electorate. “Rather, any dispute concerning the composition of an electoral delegation should be adjudicated in the state or federal courts, which are fully equipped to resolve such disputes. Further, the ECA should be amended to indicate clearly that the rules for selection of electors, and the selection of electors pursuant to those rules, cannot be changed after the popular vote has been cast.”

In addition, recognizing the slim chances of voting rights legislation being passed at this time, the City Bar strongly urges Congress to incorporate into any proposed ECA legislation several provisions from the proposed Freedom to Vote Act and the proposed John Lewis Voting Rights Advancement Act.

In urging reform of the ECA, the City Bar cites Article IV, Section 4 of the U.S. Constitution (the “Guarantee Clause”), which imposes upon the United States the responsibility to “guarantee to every State in this Union a Republican Form of Government.” Although the Guarantee Clause did not historically require popular election of a state’s presidential electors, “all 50 states have for more than a century opted, either by statute or in their constitutions, for their electors to be chosen by popular vote, reflecting a fundamental belief that, in a republican form of government, the people choose their leadership through free and fair elections,” the City Bar states.

In conclusion, the City Bar urges Congress to adopt the proposals outlined in the statement “in order to avoid subversion of future presidential elections and ensure that the composition of each state’s electoral delegation accurately reflects the results of a free and fair election in that state.”

Read the full statement here: https://bit.ly/3gyC4Bq