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ARTICLE · 15 NOVEMBER 2021

The Electoral Count Act Must Be Repealed

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The investigation of the House select committee into the Jan. 6 insurrection continues. The U.S. House of Representatives has voted to recommend a criminal contempt charge...

United StatesGovernment, Public Sector
Kirk Jenkins
Kirk Jenkins
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The investigation of the House select committee into the Jan. 6 insurrection continues. The U.S. House of Representatives has voted to recommend a criminal contempt charge against Steve Bannon, and tense negotiations are apparently ongoing with other former high-level officials.

But it is crucial, as the committee looks for ways to ensure that the events of Jan. 6 can never happen again, not to overlook the most important fix of all.

The Electoral Count Act, an 1887 statute that set the ground rules for the Jan. 6 proceedings by purporting to give Congress discretion to accept or reject a state's electoral votes, is unconstitutional. Neither the U.S. Constitution nor the 12th Amendment gives Congress or the vice president any substantive authority whatsoever in connection with counting electoral votes.

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