The Electoral Count Act of 1887 dictates the congressional procedure for certifying electoral college results in a presidential election. The Act was passed in response to the presidential election of 1876—where Democrat Samuel Tilden won the popular vote, but lost the presidency to Republican Rutherford B. Hayes because of contested results in three states—in an effort to avoid future contested elections.
But a large bipartisan group of election law scholars and politicians across the political spectrum have argued that the law creates more confusion and needs to be reformed. Today on We the People, we’re doing a deep dive into the Electoral Count Act and proposals for fixing it—which have gained traction after the events of January 6, 2021, when members of Congress challenged the electoral slates of several states and some, along with President Trump, asked Vice President Pence not to certify these votes, which would have switched the presidential election results from Joe Biden to Trump.
Joining host Jeffrey Rosen are two election law experts who co-authored an op-ed in The Washington Post titled “How Congress can fix the Electoral Count Act. Ned Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, and he also directs its election law program. Brad Smith is the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School. And from 2000-2005, he served on the Federal Election Commission.
FULL PODCAST
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This episode was produced by Melody Rowell Rowell and engineered by Dave Stotz. Research was provided by Michael Esposito, Chase Hanson, and Lana Ulrich.
PARTICIPANTS
Edward Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its Election Law Program. As reporter for the American Law Institute’s Project on Election Administration, Foley drafted Principles of Law: Non-Precinct Voting and Resolution of Ballot-Counting Disputes, which provides nonpartisan guidance for the resolution of election disputes. His latest book is Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College.
Bradley Smith holds the Josiah H. Blackmore II/Shirley M. Nault Professor of Law position at Capital University Law School. He is co-author of Voting Rights and Election Law, a leading casebook in the election law and campaign finance field. In 2000, he was nominated by President Clinton to fill a Republican-designated seat on the Federal Election Commission, where he served for five years, including as Chairman of the Commission in 2004.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Washington Post op-ed, How Congress can Fix the Electoral Count Act
- Unfree Speech: The Folly of Campaign Finance Reform by Bradley A. Smith
- Ballot Battles: The History of Disputed Elections in the United States, by Edward B. Foley
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
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