Cass R. Sunstein, The Rule of Law vs. ’Party Nature’: Presidential Elections, the U.S. Constitution, the Electoral Count Act of 1887, the Horror of January 6, and the Electoral Count Reform Act of 2022 (Dec. 28, 2022).
Abstract: With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. Responding to the constitutional crisis of 1876, the Electoral Count Act of 1887 (ECA) attempted to offer more specific rules. The ECA was a major advance, but in important ways, it was exceedingly complicated and also ambiguous, leaving important puzzles and gaps. The Electoral Count Reform Act of 2022 (ECRA), amending the ECA in response to the horrors of January 6, 2022, is a phenomenal achievement; on essentially all questions, it offers a great deal of clarity. The signal virtue of the ECRA is that it vindicates the rule of law by sharply cabining the discretion of both Congress and the states. For the first time in U.S. history, the ECRA largely succeeds in ensuring the supremacy of the rule of law in presidential elections, by limiting the risk of on-the-spot, ex post maneuvering in either Congresss or the states.