The Constitution empowers the electoral college to select the President, but the process for counting electors’ votes remains in the hands of Congress. In this episode, Constitutional Law Professor Edward Foley explains the origins of the electoral college, how and why the 12^th Amendment changed the process for electing Presidents, and the concerns that led Congress to codify the procedure for counting electors’ votes in 1887. Edward also offers some specific ways that updating the Electoral Count Act of 1887 might help us avoid some of the potential problems that might arise in upcoming elections.

“Counting the Electoral Vote – David Dudley Field Objects to the Vote of Florida” by Theodore R. Davis, from Harper’s Weekly, Feb. 17, 1877. (Collection of the U.S. House of Representatives)

Edward Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. He is a regular contributor to The Washington Post and the author of multiple books, including Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016) and Presidential Elections and Majority Rule (Oxford University Press, 2020). You can follow him on twitter at @NedFoley.

This episode was edited by Gary Fletcher.