The Electoral Count Act of 1887 is the law that dictates the congressional procedure for certifying Electoral College results in a presidential election. Congress passed it 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.
The law is also implicated in the attempt to overthrow the results of the 2020 presidential election. Now, Senator Joe Manchin of West Virginia and Senator Susan Collins of Maine have introduced a bill they say will fix the Electoral Count Act.
Rick Pildes of NYU Law and Michael McConnell of Stanford Law co-authored a piece for the Election Law Blog called “Why Congress should swiftly enact the Senate’s bipartisan ECA reform bill,” and today they join host Jeffrey Rosen to discuss the pros and cons of the bill.
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This episode was produced by Melody Rowell and engineered by Greg Scheckler. Research was provided by Sam Desai, Vishan Chaudhary, Eliot Peck, Colin Thibault, and Samuel Turner.
Participants
Michael McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. From 2002 to 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit. His most recent book, The President Who Would Not Be King: Executive Power Under the Constitution, was published by Princeton University Press in late 2020, and his upcoming book, co-authored with Nathan Chapman, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, will be published by Oxford University Press in 2022.
Rick Pildes is the Sudler Family Professor of Constitutional Law at NYU Law. In dozens of articles and his acclaimed casebook, The Law of Democracy, he has helped create an entirely new field of study in the law schools. He served as law clerk to Justice Thurgood Marshall, and President Biden appointed him to the President’s Commission on the Supreme Court of the United States.
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
- Listen to our first episode on the Electoral Count Act with Ned Foley and Brad Smith from January 2022
- Read “Why Congress should swiftly enact the Senate’s bipartisan ECA reform bill,” by Ned Foley, Michael McConnell, Derek Muller, Rick Pildes, and Brad Smith, on the Election Law Blog
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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