Reform May Be on the Way for the Electoral Count

The Story:

The procedure by which electoral votes are formally counted in the United States, and the winner of a Presidential election declared, is dictated not by the Constitution, but by a statute. Given the dispute that broke out a year ago, including a violent riot on Capitol Hill on Jan. 6, 2021, there is a move afoot to reform that procedure. Minority Leader Mitch McConnell last week expressed his own openness to such reform.


The law in place now is the Electoral Count Act of 1887. It requires that the House and Senate be in session on the January 6 following a presidential election to count the votes. The two bodies are to meet together in the House Chamber at 1 p.m., on that date, and the Vice President of the United States, in his capacity as President of the Senate, shall preside.

Some of former President Trump’s supporters believed that this arrangement gives the sitting Vice President an opportunity to reject the electoral results from various swing states, in effect nullifying the choice of those voters of those state.

The Thing to Know:

The weight of scholarly authority is against that reading, and members of both parties in Congress at present seem willing to re-work the 1887 law to make explicit their rejection of any view empowering the Vice President in such a drastic way.

John Thune (R – S.D.), the Senate Minority Whip (the second in command on the Republican side) has said: “The role of the vice president needs to be codified, so it’s clear what that is.” Relatedly, although it ought to be possible to raise serious objections to the legitimacy of a particular state’s electors, as Thune also said, “There’s some question about how many senators or House members it ought to take to object before it triggers a vote.”



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