Here's how we fix the Electoral Count Act

We can still draw on the wisdom and experience of the past. Remember how back in 1877 Congress created an ad hoc electoral commission vested with the “same powers, if any” that Congress itself had, to accept or reject disputed electoral votes?

The Electoral Count Act of 2022 should expand on that idea and make it permanent. In the event of a dispute, a Special Electoral Commission would be created and the commission would consist of the current membership of the Supreme Court. If the current membership consists of an even number of justices, an additional member would be selected by lot from retired justices who have served on a circuit court panel in the last year. Should none be available, the final member would be selected by lot from active senior judges on the D.C. Circuit Court of Appeals.

This commission would be empowered to make binding decisions on all electoral count objections and members would not be allowed to recuse themselves on the grounds that they had previously heard a case regarding the dispute. In fact, that would sort of be the point. If the Supreme Court has already heard the dispute, we would not want the electoral commission to reach a different result.

If the Supreme Court had not heard the dispute, it would still have the benefit of the record created by litigation in the lower courts. And reviewing such a record and reaching a well-reasoned decision is something that the Supreme Court, unlike Congress, excels at, even when it is convened as an electoral commission instead of a court.