Under current law, a simple majority in the House of Representatives could not only derail the process for counting electoral votes but would also appoint the person who becomes president if and when that process fails. If Congress wants to prevent this from happening, it needs to look past the Electoral Count Act to another area of law that reformers have yet to address: that governing presidential succession.

This disturbing scenario has its origins in the process that the Constitution sets out for determining who becomes president following a general election. The 12th Amendment requires that the vice president, in his or her capacity as president of the Senate, open the electoral votes received from state electors “in the presence of the Senate and House of Representatives,” at which point the votes “shall then be counted.” To satisfy this requirement, Congress has traditionally convened a joint session where the House and Senate sit together to review the electoral votes and debate any issues. Once the count is finalized, the vice president reads the results to those assembled and thereby establishes who has qualified to become the official president-elect and vice president-elect…

The Electoral Count Act states that the House and Senate “shall meet” to count the electoral votes at a specific date and time in the years following presidential elections. But there are good reasons to doubt whether Congress can compel the House and Senate to take such a step; notably, the Constitution empowers each individual chamber, not Congress as a whole, to “determine the Rules of its Proceedings.” Legislators recognized this possibility shortly after the Electoral Count Act was enacted. This is why they continued to have both chambers vote on whether to enter into each joint session, a practice that dates back to the first counting of electoral votes in 1789.