The Electoral Count Act of 1887 is a statute governing the counting and certification of presidential electoral votes, enacted in the wake of the disputed election of 1876. On The Bob Zadek Show in August 2022, guests Ilya Somin and Ned Foley described the Act as poorly written and vague, and as the focus of a rare bipartisan reform consensus following the 2020 election.
The 1887 statute and its vague provisions
Ilya Somin, a professor of law at George Mason University and a member of the libertarian team in the National Constitution Center’s “Guardrails of Democracy” project, said the events of 2020 revealed problems with “this piece of legislation that probably most Americans had never even heard of before 2020, called the Electoral Count Act of 1887, which was enacted in the wake of the disputed election of 1876.” 3 Libertarian Ideas to Strengthen Democracy (2022)
Somin identified several vague aspects of the legislation that he said Donald Trump and others tried to exploit in 2020. First, he said it is not entirely clear at what point states must certify their votes, which he said led to efforts — unsuccessful ones — to have a state legislature, after the fact, “create a different slate of electors which was not the one that was chosen.” Somin said states may allocate their electoral votes as they wish under the Constitution but must set the system by which this is done before election day so they cannot change course after the fact because they dislike the result. Second, he said it is not entirely clear what happens if a governor, a state secretary of state, or another official in charge of certifying the vote refuses to do so, as he said Trump tried to pressure some Republicans into doing in 2020; Somin proposed allowing judicial review of such decisions so that judges can strike down illegal conduct by a state official. Third, he described Congress’s and the Vice President’s power to refuse to recognize particular electoral votes as, until 2020 and 2021, usually just a formality. He recalled that the events of January 6th were precipitated by Congress meeting to certify the electoral votes sent by the states, with some right-wing Republicans saying they would refuse to certify the vote from Pennsylvania and other disputed states, and with Trump pressuring Vice President Mike Pence to determine on his own authority that certain electoral votes were not properly cast and refuse them. 3 Libertarian Ideas to Strengthen Democracy (2022)
Somin proposed reforms: making clear that Congress can refuse to recognize votes only for a narrowly specified set of reasons, such as an actual calamity or strong evidence of fraud; making clear that the Vice President cannot overturn results on his own authority; and raising the threshold for initiating a challenge, since under current rules a single senator or House member willing to challenge a state’s electoral votes is enough to trigger a process and a vote to potentially reject them. He said it would be desirable to require some significant percentage of members of Congress to start a challenge, rather than leaving it to what he called one rogue ambitious senator like Josh Hawley, whom he called the ringleader of this stuff on the Republican side. Somin said Mike Pence correctly decided he did not have the authority to overturn results even under the 1887 Act, but that it is desirable to make this clearer. He argued that even those who like Trump and the Republican Party should recognize that similar shenanigans could easily be used by Democrats, and he called it ridiculous to assert that the Vice President — often a competitor in the election, as Pence was or as Al Gore was in 2000 and 2001 — should have the right on his or her own authority to overturn electoral vote counts. 3 Libertarian Ideas to Strengthen Democracy (2022)
Consensus among the Guardrails teams
In a companion episode, Somin said there was less polarization between the three reports produced by the National Constitution Center’s progressive, conservative, and libertarian teams than in the broader public, though he cautioned that the report authors were not representative examples of the general population and in some respects might not be fully representative of their three political factions. He called Electoral Count Act reform the most obvious issue of consensus among experts, and said there was also broader consensus that political ignorance is a very serious problem, though experts disagree about how to address it. The Libertarian Dream Team - Ilya Somin (2022)
Somin said there was a lot of agreement between the three teams on the electoral system, and even agreement in Congress, which he said looked like it might be about to do something about it. 3 Libertarian Ideas to Strengthen Democracy (2022)
Ned Foley: reform as necessary but not sufficient
Ned Foley, appearing in a later episode, framed the Act’s reform as one component of a larger problem. He said the Electoral Count Act was the result of the election of 1876, that it has been all over the news for the past year or so, and that it never worked, does not work, and is not well-written. He said everybody agrees it has to be changed and that there seems to be a movement to have it changed, so he and Bob Zadek did not have to persuade anybody on that point. Enhancing Trust in Democracy (2022)
Foley placed the Act within what he called a trust deficit. He said election denialism and fear that results are not trustworthy require attention to chain of custody rules and ballot security rules to maximize trust, and that this may be true even when the reasons for distrust are not valid — disinformation may have fomented the distrust, but the distrust is important, significant, and dangerous enough that it must be addressed. He described Electoral Count Act reform as a component of the technical rules for counting votes and certifying results that have to be shored up to deal with that trust deficit. Enhancing Trust in Democracy (2022)
Foley said the other structural reform, which he called just as important and not getting enough attention, concerns the mathematical problem of taking a set of disparate voter preferences and producing an election result. He said that with two choices, the choice getting the most votes is definitionally a majority, but that with three or more options, “more” could be a plurality rather than a majority. He offered the example of three options, A, B, and C, in which A gets a plurality of somewhere between 35 and 40 percent, more than B or C, but would lose any two-way choice because a majority of voters would vote against A if it were A versus B or A versus C. He said society has tried to pretend it has only two parties — donkey and elephant, red versus blue — even though the Libertarian Party and the Green Party exist, and that we will not navigate our difficult terrain until we confront this basic structural issue. Enhancing Trust in Democracy (2022)
Foley grounded his analysis in James Madison, whom he called more than anybody else responsible for the Constitution and a writer of part of the Federalist Papers. He quoted Madison’s phrase “ambition must counteract ambition” and Madison’s statement that men are not angels, and said a full understanding of the Madisonian concept requires adequate virtue to run a democracy or a republic, because with zero virtue no rules or institutions will matter. He said Madison hoped to create a Constitution without any political parties at all, which quickly did not happen, and that the current degree of disequilibrium is even greater than before, possibly because of social media and cultural changes. He said that if we accept that we must design a system for who we are as human beings, there are two structural features to focus on to improve the situation. Enhancing Trust in Democracy (2022)
Across episodes: what changed
The topic appears in three episodes, all from August 2022. In the two episodes featuring Ilya Somin, the Electoral Count Act is treated as a discrete reform on which the three Guardrails teams and Congress broadly agreed, with Somin detailing its vague provisions and proposing specific fixes. In the Ned Foley episode, the Act is treated as one component of a trust deficit and is explicitly set aside — Foley called it too easy a subject and said he and Zadek did not have to persuade anybody — in favor of deeper structural questions about plurality voting and the Madisonian premise. The excerpts show a shift in emphasis from the Act itself to the conditions that make electoral distrust dangerous, advanced by Foley, rather than a change in position on the Act.
What the sources do not cover
The excerpts do not state the full text or section structure of the Electoral Count Act, nor the specific terms of any reform bill, its sponsors, or its legislative status. They do not describe what the Act’s certification deadline or rejection procedures actually provide, beyond Somin’s account that they are vague. The excerpts also do not state the outcome of any reform effort, and the Foley episode breaks off before the discussion of structural alternatives is completed.