So much has already been written, and undoubtedly will continue to be written, about the Electoral Count Act of 1887 that we should pause and actually read it. This article is based on the original text, Chapter 90, approved Feb. 3, 1887, of the Revised Statutes. The original text gives a better picture of the coherence and purpose of the Act than does its codification in separate sections of Title 3 the United States Code.

The short title is "An act to fix the day for the meeting of the electors of President and Vice-President, and to provide for and regulate the counting of the votes for President and Vice-President, and the decision of questions arising therefrom." As we shall see, no substantive question as to the constitutionality of many sections of the Act exist. Indeed, some of its Joint Session procedural provisions could also be viewed as an exercise of Congress's undoubted constitutional rule-making authorities, as for example in the Twenty-Second Joint Rule adopted just after the Civil War and of which the Act is the successor.

So, pace The New York Times article, discussed in my Feb. 23, 2022 New York Law Journal article, and recent publications of the Wall Street Journal Opinion/Commentary, J. Michael Luttig and David B. Rivkin Jr., Congress Sowed the Seeds of Jan. 6 in 1887, Wall St. J., March 18, 2021; Editorial, Preventing Another Jan. 6, Wall St. J., Feb. 16, 2022; Opinion/Letters, Thomas Berry, The Electoral Count Act's Constitutional Role, Wall St. J., Feb. 28, 2022; Opinion/Letters, Mike Luttig and David B. Rivkin Jr., Why The Electoral Count Act Is Unconstitutional, Wall St. J., March 6, 2022. They paint the (un)constitutionality of the Act with too broad brushes.