Editor’s note: This article is part of a series from leading experts with practical solutions to democratic backsliding, polarization, and political violence.

We live in an era of electoral distrust. Nowhere is that distrust more acute than for presidential elections, in part because many voters have now come to perceive the stakes in presidential elections to be existential.

The Electoral Count Act (ECA), which governs the relationship between Congress and the states, needs to be clarified and reformed to reflect this era of distrust. Proper reform of the ECA would also do much more to address the risk of electoral subversion – at least for presidential elections – than many on Twitter and elsewhere may realize.

Some issues in ECA reform are easy. Clarifying that the Vice President’s role is purely ministerial is one. So too is raising the number of representatives and Senators who must lodge a formal objection to a state’s electoral votes to trigger debate on that objection.

Other issues are more challenging to solve, because pervasive distrust now surrounds nearly all institutions involved in administering elections. Widespread concerns now exist about whether the American people can trust either Congress or the relevant state authorities not to corrupt the process for partisan reasons.

Given this deep distrust of institutions, deciding how to allocate authority between Congress and the states in an updated ECA is no easy task. Nonetheless, I can offer a few general principles to guide those decisions. This short essay cannot be the place to go down every rabbit hole and address how an updated ECA should address every possible contingency. But these general principles organize analysis, in my view, along the right lines.

Congress. On what substantive basis, if any, should Congress have the power to object – and hence potentially to reject – a state’s presidential votes? On the one hand, concerns that the process could be manipulated in the states might suggest Congress ought to have the power to re-examine a state’s returns to make sure the state process was conducted lawfully. On the other hand, putting this type of power in Congress is also dangerous, given concerns that Congress could abuse it for partisan reasons.

Historically, some members of Congress have argued the Constitution itself does not permit Congress to reject a state’s votes based on judgments about the legality or propriety of the state’s voting process. Whether that’s correct, some scholars conclude in any event that the current ECA itself denies Congress any power to reject a state’s votes based on the view that there were flaws in the state’s voting process; Congress’ power is, on that view, limited to objecting only to the qualifications of the electors themselves. And indeed, Congress has only once even arguably rejected a state’s vote when a state has sent a single slate of electors. That anomaly occurred in 1872, in the aftermath of the Civil War, when Arkansas was in effect having its own internal civil war and which actors represented the legitimate government was itself in doubt.

For a number of reasons, only some of which can be mentioned here, a reformed ECA should reaffirm that Congress does not have power to second guess the voting process in a state. The means to ensure the integrity of the state process should be located in substantive legal rules and other institutions, as discussed below, not Congress.

Presidential elections rarely come down to the vote of a single state. If the process is corrupted at the state level, it is likely that would have to happen in more than one state to change the overall outcome. Yet if Congress, as a single institution, has the power to reject a state’s votes, a partisan Congress determined to concoct justifications for rejecting votes would likely reject votes from as many states as necessary to shift the election’s winner. What’s more, the process in the states will be overseen by courts, both state and federal. Yet Congress would most likely operate without any judicial oversight (and suggestions to give federal courts the power to supervise the vote counting in Congress, in the two weeks before the President must be inaugurated or a caretaker, “Acting President” takes over, are ill-advised). Would the basis for any congressional objection be a legal one, namely, that the state processes violated state or federal law? If so, Congress would be second guessing the courts that had adjudicated those issues already. If a factual inquiry, such as whether fraud had occurred, it is unlikely Congress would have the capacity to create and implement its own fact-finding investigation in the timeframes in which it would be operating – and those factual disputes would also likely have been adjudicated already in courts.

Perhaps it is tempting nonetheless to want to leave the door open just a bit for Congress. A reformed ECA might try to define specific, narrow circumstances in which Congress can reject a state’s returns. But to believe those terms would effectively constrain Congress is highly risky. A congressional majority disposed to act for partisan reasons is likely to have no trouble walking through that door and insisting that its rejection of a state’s votes complied with whatever limited conditions the ECA specified.

If Congress has the power to second guess the voting process behind a state’s returns, the threat that political considerations will overwhelm legal ones is too high. Best to reaffirm the long-standing understanding, which only began to break down over the last twenty years, that Congress cannot look behind a state’s returns.

The States. At the same time, there are understandable concerns that the process might be unlawfully manipulated, for partisan reasons, at any number of points at the state level. Will state legislatures attempt to appoint the electors themselves, after the popular vote has taken place? Will Secretaries of State or Governors refuse to certify a slate of electors, despite that slate accurately reflecting the popular vote or certify a slate for the other candidate? If state bodies that perform certification have an even number of members, for partisan balance — as with the canvassing boards in Michigan — will these boards gridlock and not be able to certify at all?

Unfortunately, a basis for these concerns now exists. In some states, bills have been introduced to give legislatures more means to insert themselves into the post-election vote counting and certification process. In some states, candidates are now running for Governor, Secretary of State, or local election bodies proclaiming they would not have certified the 2020 election results in their states.

These are the risks of what we have come to call “election subversion.” A clarified and updated ECA should address several of these concerns. That is why addressing election subversion and reforming the ECA are not separate projects: they are inextricably intertwined.

Several measures the ECA can take to protect the integrity of the state processes actually are already reflected in the current ECA or adjacent federal law. But in our age of election distrust, an updated ECA should make these provisions crystal clear. Many of these measures are based on the principle that state law must establish in advance of the election, and be bound by, the framework for the election and resolution of any disputes over the process or results.

First, federal law – the Presidential Election Day Act – already establishes a single, nationwide day on which the election must take place. Technically, state law has given the voters the power to appoint electors on that day; it might take time, of course, for canvassing, recounts, litigation, and other steps to reach a final determination about what choice the voters have made. But the choice is made on that day. Under this law, therefore, it is already clear that state legislatures cannot appoint the electors after Election Day. The state cannot change its laws after the fact. But an updated ECA should make clear that states are bound by their own laws for appointing their electors.

The Act should specify that once the election has taken place, no authority exists any longer for the state’s legislature to change the manner of appointment for that election. As a constitutional matter, state legislatures have the power to decide in advance to appoint electors themselves, as they did in the early 19th century, and not give their citizens a vote at all – though that would be politically untenable today and seen as a form of disenfranchisement. But federal law currently precludes them from “reclaiming” this power after they have authorized an election that has taken place. Given the confusion on this point in some circles, it would be valuable for the ECA to make the framework more plain.

Second, reflecting a similar principle: votes must be counted according to laws the state has enacted in advance of the election. The ECA should specify that neither the state legislature nor any other state official or body may change the rules for counting the ballots after votes are cast. This principle is already reflected in constitutional doctrine in the lower courts: in the guise of resolving election disputes, the Constitution precludes state actors effectively changing election law post hoc. I have written about these decisions banning the creation of “new law” by state courts or other state actors when they purport to be applying state election law. But this doctrine should also be expressly adopted in an updated ECA.

Third, state law always specifies which state actors have the authority to certify the vote. If we again confront the situation – which has not arisen since 1876 of different parts of a state government purporting to certify different slates — a revised ECA should make clear that Congress will count the votes from the authority that has been designated, in advance of the election, as the authority to certify the vote (as that certification has been modified, if necessary, by the federal judiciary).

Fourth, federal law currently does give state legislatures the power to appoint electors in the event the election has “failed” in their state. I have called this provision a loaded weapon lying around waiting to be abused. This provision, in 3 U.S.C. § 2, was enacted in the mid-19th century to address the risk that an event such as a natural disaster made it impossible to conduct the election on Election Day. It has never been used. But in our current climate, it’s essential to specify this provision comes into play only in the most exceptional circumstances, such as a natural disaster that makes voting impossible for a substantial enough number of voters that the outcome in that state could potentially be affected. In addition, Congress should consider requiring, or at least permitting, states to conduct the election if they can do so within the next three to five days after the natural disaster or similar circumstance. Voters should be choosing the President, not state legislatures.

Finally, Congress should also make it a federal crime to intimidate, threaten, or coerce officials involved in tabulating, canvassing, certifying the vote, or administering elections in other roles. The Department of Justice already has certain powers to protect the election process, but they can be broadened and clarified.

Federal Courts. Federal courts should be the critical institutional buffer between Congress and the states. To a large extent, they are so already. For one, the Equal Protection clause requires that ballots in a statewide election all be counted according to consistent principles and precludes arbitrary treatment of ballots. The Due Process clause, at least according to the lower federal courts, precludes all state officials from changing, in effect, state election law. But a reformed ECA should make clear that federal courts have jurisdiction to consider properly presented claims of federal law arising from the state’s proceedings for counting the popular vote. This should include the ability of the major-party candidates to go to federal court and challenge a state’s certification if they believe it was not made in compliance with federal law. These provisions should also make clear the role of federal courts in the event state officials fail to certify the vote for any candidate.

Working out the precise relationship between federal and state courts and the timing of federal court involvement is beyond the scope of this essay. But better to bring federal courts in before the vote-counting begins in Congress rather than try to do so during it.

ECA reform is critical — as many members of both parties in Congress recognize — before we find ourselves in the midst of a presidential election crisis. These general principles should provide the general framework for that task and, as draft bills become public, I will address more specific details with these principles in mind.