Reforming the Electoral Count Act

The current draft of legislation to amend the Electoral Count Act contains many significant improvements. But I do want to highlight one issue that could pose a problem down the road.

There is a tension between Congress's role in counting the electoral votes and the authority of state legislatures to determine how presidential electors are chosen. If Congress says "we will only count a state's electoral votes if . . ." that could be understood as an intrusion into the state legislature's authority if the state presents a single slate of electors. For instance, the current draft of the bill says that state legislatures may not reverse the result of the state's presidential election and award the electors to the other candidate. Or, put another way, Congress will not count any electoral votes awarded ex post by the state legislature.

I think, though, that Congress can say this only if state legislatures lack that power. And there is a decent argument that they do lack that power. If that's wrong, though, then I don't see how Congress can refuse to count such votes. Perhaps the answer is that in that situation there will always be two slates of electors, such Congress would just be choosing between them, but I'm not sure.