The Proposed Replacement for the Electoral Count Act is Probably Worse than the Status Quo
by Neil H. Buchanan Last week, Professor Dorf and I wrote somewhat-conflicting assessments of the bill that would amend/replace the 1887 Electoral Count Act (ECA). We both certainly agree (as does almost everyone) that the ECA is a mess and needs to be replaced. It is, after all, a big reason that there is so much uncertainty about what happens when competing slates are sent to the Electoral College from the same state; and the miasma that the ECA creates was what Donald Trump's lawyers used to try to pull off the bloodless part of their coup plot. Even though the ECA is terrible, I should state clearly that there is simply no way that that law -- even in its disastrously muddled current form -- justifies what John Eastman said it justifies. And any replacement to the bill should be understood not to be immune to such bad-faith misreading. Even so, there is an important question about the proposed replacement, which boils down to the classic question of w...