Wall Street Journal: Repeal the Electoral Count Act of 1887 

On January 6th, as we all know, there was an insurrection at the U.S. Capitol that caused the death of five people, threatened the lives of others and destroyed  U.S. government property.

The “business” of Congress that day was to certify the prior presidential votes of the Electoral College.as required by the Electoral Count Act of 1887 [“ECA”}.[1]

That statute, said  a January 26th editorial in the Wall Street Journal, should be repealed. According to the Journal, the ECA “was intended to resolve contested presidential elections’ in an era when the electoral votes were “delivered to Congress by train or carriage.” Now there is no such need when “results are broadcast in real time.”

In recent years, however, “it has mainly been used by partisans in Congress to exploit the ceremonial process of counting electoral votes. . . .In the wake of the Capitol invasion [this year], the ECA is ripe for an overhaul that reins in Congress’s increasingly destabilizing role in presidential elections. Repealing the law would make future challenges, even by the most willful candidates, less likely to spin out of control.”

“The ECA clashes with principles of  federalism and the separation of powers. The Framers didn’t want the executive branch to be beholden to the legislative branch, so they designed an Electoral College to elect the President independent of Congress. Voters in each state register their choice for President by choosing a slate of electors, whose votes are then transmitted to Congress to be logged.”

The editorial concluded, “If the 117th Congress wants to firm up the legitimacy of election outcomes, then restoring the constitutional balance by repealing this dated legislation should be a priority.”

This blogger concurs in this half-way judgment of the Journal. Instead, the Electoral College should be abolished by a constitutional amendment.[2]

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[1] Editorial, The Law That Fueled the Capitol Riot, W.S. J. (Jan. 26, 2021); [Electoral Count Act], 3 U.S. Code sec. 15; Electoral Count Act, Wikipedia.

[2] E.g., Democrats Have Two Years To Prove U.S. Political System Works dwkcommentaries.com (Jan. 27, 2021).

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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