The Electoral Count Act is fixed: Presidential transition remains in jeopardy

It was not easy, but Congress did what it took to prevent another Jan. 6. They rewrote the antiquated 1887 Electoral Count Act, which governs the counting of states’ electoral slates for president. President Joseph Biden approved this overdue reform when he put his name on the hulking Consolidated Appropriations Act in late December. 

For this, we all should be thankful. When Vice President Kamala Harris is presiding over the proceedings in January 2025, no legislator can plausibly argue that she has the power to throw out any state’s electoral votes. And if any representative or senator decides to showboat by objecting to the counting of any votes, well, they will need to get one-fifth of both the House and Senate to join them to forestall the vote count.  

All of which means we voters can expect the next presidential transition to proceed in an orderly fashion and without any bad craziness. 

Well, maybe not. 

Imagine this: It is mid-November 2024 and we have yet another close election. It is a veritable repeat of 2020, but the GOP manages to win Georgia and Pennsylvania this time around. Additionally, a third-party candidate has managed to win two electoral votes.  

“Wait,” you might object, “how could any candidate get those two votes? Each state has three or more electoral votes! Besides, there is no way a third-party candidate could win any state!” 

These points are true, but Maine and Nebraska do not have a winner-take-all system. Each apportions their votes for president and vice president thus: Two electoral votes go to the state popular vote winner, and one electoral vote is awarded to the popular vote winner in each congressional district. Maine has two congressional districts and Nebraska has three of them. So, yes, a third-party candidate could win in two districts and be awarded those votes. He or she need only garner a couple hundred thousand votes in these low-population districts.  

Voila, we have what is termed a “contingent election,” wherein none of the three candidates would have 270 electoral votes, which is the number needed to be deemed the next president. The election would then go to the House of Representatives. 

But wait, in an additional twist, let’s imagine one of the candidates dies (naturally or by assassination) or is incapacitated by a medical condition before the House convenes to select the president. What is the House of Representatives supposed to do? 

It is not clear, as Michigan State University Professor Brian Kalt has been warning America since 2016. “The Constitution limits the House of Representatives to choosing from among the top three electoral-vote winners,” he explains. “If one of the finalists dies, no replacement can meet the qualification of having finished in the top three.” 

Fortunately, Congress can fix this problem. Section 4 of the 20th Amendment states, “The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.” 

Indeed, Congress expected a statutory fix to be made for this “dead candidate” problem when it ratified this amendment in 1933. But as with the Electoral Count Act, our national legislature has failed to act proactively.  

Professor Kalt lies out a few ways that Congress could tackle this problem in a 2017 law article, as does the Commission of Continuity of Government in a recent report. The simplest remedy would be to authorize electors to vote for the deceased candidate’s running mate. 

For better and for worse, the American president has evolved into an extraordinarily powerful position, and the perceived stakes for winning it have escalated enormously over the past century. And we have seen how far some people will go to see that a candidate wins or loses.  

It took the Jan. 6 riot and sacking of the Capitol to goad legislators to fix what was obviously a longstanding problem in our presidential electoral procedures. The nation was fortunate that our institutions held, thanks in part to some individuals choosing to do the right thing. 

It would be foolish for Congress to tempt fate again. Legislators should get to work promptly on drafting legislation to ensure an orderly completion of the presidential selection process. 

Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He is the co-editor of “Congress Overwhelmed: Congressional Capacity and Prospects for Reform” (University of Chicago Press, 2020). He hosts the Understanding Congress podcast.

Editor’s note: This story was updated on Jan. 11 at 9:04 a.m. to correct dates mentioned.