Published January 25, 2022
There has been a lot of depressing rhetoric lately about purportedly partisan assaults on our democracy. That’s why recent bipartisan talks to rewrite the Electoral Count Act of 1887 are a refreshing and much-needed antidote to the doom-mongers’ wails.
The Electoral Count Act is the measure that regulates how Congress can hear and resolve challenges to a state’s certification of electoral votes. It was adopted in the wake of the election of 1876, when the votes from four states — Florida, South Carolina, Louisiana and Oregon — were disputed. The matter was sent to a 15-person congressional commission, which voted 8 to 7 along party lines to award the votes to Republican Rutherford B. Hayes. That gave him just one more electoral vote than he needed to win the presidency, even though he lost the popular vote by three points.
The ECA was intended to provide an orderly process in the event of another 1876-style dispute. But both parties in recent years have used the law to object to election outcomes in hotly contested presidential races. It has been manipulated to effectively make Congress a super court that can hear evidence and decide whether a slate of electors was invalidly selected by a state — with Congress being the sole determiner of what invalidity means.
Henry Olsen is a Washington Post columnist and a senior fellow at the Ethics and Public Policy Center.