One need not be a partisan to easily see that the procedures by which we elect the President of the United States are fraught with problems. Were it not for the fact that the U.S. Supreme Court’s decision in Bush v. Gore is generally off-limits as precedent, its holding that Florida’s recount process violates voters’ equal protection rights could be the basis for the invalidation of so many inconsistent state voting laws in presidential elections. After all, why should voting for electors in one state be different or more difficult than in another? Although this equal protection argument to challenge restrictive state laws is unlikely to prevail under current jurisprudence, free associational rights under the U.S. Constitution might. The Supreme Court in Anderson v. Celebrezze struck down an Ohio ballot access deadline for president because it hindered his ability to reach 270 Electoral College votes and thus diluted the votes of his supporters across the country. One could thus analogize that a New York voter’s associational rights are likewise unconstitutionally impacted by restrictive voting laws in Texas or Arizona.

Beyond these observations about our crazy-quilt system of voting for president, the current focus by many election law scholars and members of Congress is how the Electoral College votes are counted once the states have actually voted. As most readers know by now, the U.S. Constitution provides that after winners are certified by the states (and Washington, D.C.), the results are sent to Congress and, with the Vice President (or president pro tem) presiding on January 6th (as per statute), “the votes shall then be counted.” As readers also know, in 2020, as in 1877 after the infamous Hayes-Tilden election, it was argued that the Vice President had the authority to decide whether a state’s electoral slate should indeed be counted. In both cases, this view was rejected. The prevailing view, even by Vice President Pence last year, was that this role was purely ministerial—to simply preside over the counting of the electoral votes.