Rectifying the Jan. 6 Fiasco: "Enacting a reformed and clarified Electoral Count Act... would be both the correct policy choice for avoiding election chaos and the approach most consistent with our constitutional design.".

• Author: Berry, Thomas A.
• Position: AMERICAN THOUGHT

IT RECENTLY WAS argued by The Wall Street Journal editorial board that the current efforts to reform the Electoral Count Act of 1887 have been fundamentally flawed. Why?--because in the board's view, "the only real way to prevent future mischief is to repeal this unconstitutional statute." That view is doubly wrong. Enacting a reformed and clarified Electoral Count Act (EC A) would be both the correct policy choice for avoiding election chaos and the approach most consistent with our constitutional design.

In the Constitution, the Framers wrote that the members of the Electoral College must mail certificates listing their presidential votes to Congress, where the President of the Senate shall "open all the certificates, and the votes shall then be counted." The Framers did not specify how that count would proceed, however, and the EC A attempts to fill that silence. The ECA allows Congress to toss out and discount a purported electoral vote if both Houses agree by majority vote that the purported electoral vote either was not "regularly given" nor "lawfully certified," but the ECA does not give guidance to Congress as to what those terms mean. The current reform efforts thus have focused on making more explicit the valid grounds Congress could have to take such a drastic step.

In the view of the editorial board, however, even strictly curtailing this power would not go far enough. Such a reformed ECA still would "retain some electoral-vote rejection power for Congress"--and to the board, any congressional vote-rejection power "leaves far too much room for congressional sabotage" because such a power "tells partisans that the election isn't really over until January."

The board's concerns over the risk of "partisan temptation" to make "phony objections" are well taken. The desire never to allow a repeat of Jan. 6, 2021, is at the heart of the current reform efforts. Foreclosing the theory that Congress can relitigate the conduct of the general election is a desire shared by both the editorial board and the current ECA reformers in Congress.

Still, the board goes too far when it argues that nothing about the purported votes received by Congress should be reviewable during the count on Jan. 6. For better and for worse, we have a two-stage process for electing the president. The general election chooses the electors, and the electors then choose the president. Both of those stages are subject to rules that must be followed. Congress should not...