An electoral commission would be both illegal and a terrible idea

The ECA was expressly written to prevent a repeat of the interminable 1876 dispute. Rather than allowing Congress to kick the can of accountability to a commission, it requires that a decision on each objection to an electoral vote must be reached after a debate strictly limited to two hours. This structure makes sense only if objections are of a type that can be meaningfully considered and decided in two hours, i.e., if they involve facial legal problems with the electors rather than complex factual allegations of problems with their election.

What does all this history tell us about the eleven Republican senators seeking to “reject the electors from disputed states” when Congress meets to count the electoral votes and declare a winner on Wednesday? Well, first and foremost, none of their disputes with the 2020 election plausibly qualify as a challenge to an electoral vote as having not been “regularly given” or “lawfully certified.” Indeed, the senators’ stated plan to object to the votes as both “not ‘regularly given’ and ‘lawfully certified’ (the statutory requisite)” without differentiation between the two demonstrates that they are not even attempting to take seriously the text of the bill as it was understood at the time of passage. To be sure, the ECA can always be altered by the passage of a new bill, which is presumably the vehicle by which these senators will demand a new electoral commission. But unless and until such an amendment to the ECA passes, the ECA is still binding. And the very fact that these senators acknowledge they would need a commission to meaningfully investigate their issues with the election shows that their challenge does not faithfully qualify as an ECA challenge.

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