The new Electoral Count Reform Act will have an effect on state election laws in presidential elections. The timing mechanisms have changed, and rules now expressly invite state legislatures to make explicit choices before Election Day. And states should be aware of how the changes could affect their own election codes, and whether they should revisit some of their existing choices.

First, the ECRA abolishes the “failed to make a choice” provision of the 1845 act (North Carolina may need to repeal its law to this effect) and replaces it with a firm, singular “election day” requirement, with one exception: “except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day.” States should provide those clear rules before the election for what “extraordinary and catastrophic” “force majeure” events trigger a modified period of voting. (This only applies to presidential elections, but it could also apply to state elections happening at the same time, if a state so chose.)

I commend the work of Professor Michael Morley, who has offered extensive and thoughtful views on what election emergency statutes should look like. To borrow from one of his recommendations in an Emory Law Journal piece from 2018:

[A]n emergency that is either of limited duration or affects only a limited geographic area is best addressed through an election modification, in which the election is allowed to proceed with only minor changes to the generally applicable laws. Examples of election modifications may include relocating polling places, extending the hours of polling places that were temporarily inoperable, using paper ballots instead of electronic voting machines, permitting voters to cast ballots through alternate means, or allowing re-votes if certain cast ballots are destroyed before being counted. One important issue such laws present is whether election officials should have discretion to implement such measures on their own, must wait for a declaration of emergency from local or county officials or the governor, or instead must seek a court order before implementing such changes. A statute requiring judicial permission before extending polling place hours, or making other substantial modifications to the rules governing an election, would be a particularly prudent safeguard.

Express guidance for what events qualify, with a requirement for judicial permission, would be “prudent” indeed.

Second, the ECRA adds a firm deadline for executives to submit certificates of ascertainment of appointment of electors (no more “safe harbor” or presumptions). States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window. States like California have languished in completing their canvass in recent years, taking up to 30 days to resolve the initial canvass, setting aside even the possibility of recounts (in the event of a close election). Some states allow ballots to come in seven to ten days after Election Day, and maybe that continues to work to meet existing deadlines, but states should strive for wrapping up the canvass as quickly as possible after the last ballot comes in. Other states have developed newer recount triggers, or risk-limiting audits, which should be completed with an eye toward this firm deadline. But states should think about how they plan on running through each of these steps (which Georgia mostly had to do in 2020!) in a tight time frame.

Relatedly, expedited state judicial resolution should be considered in the states, including specially-created contest courts or expedited appeal mechanisms. (Iowa, for instance, creates a seven-judge tribunal with no right of appeal for election contests in federal races, to be resolved “six days before the first Monday after the second Wednesday in December next following,” i.e., the old “safe harbor” deadline, which means it should probably be updated!)

The precedent from Hawaii 1960 has been repudiated. That is, no more judicial challenges or recounts extending into January.

Third, the new ECRA expressly requires a “security feature” on the certification of ascertainment of appointment of electors, “as determined by the State.” This is a modest requirement, and perhaps the seal on state certificates are adequate, but it’s worth considering what feature the states will use.

Fourth, the ECRA defaults to the executive to the “governor,” but state law may identify “a different State executive” to perform the duty (say, a Secretary of State) if it so chooses.

State legislatures should take a step by step approach to examine what the ECRA does and how it meshes with their existing election code. Formally, no state will be forced to make a change, as the new federal obligations simply exert different pressure on existing state law. But it provides an opportunity for states to modernize their election codes to meet the clearer federal guidelines ahead of the next presidential election.

Earlier this week, I noted that the Senate’s Electoral Count Reform Act was included in the omnibus bill, with “quite minor technical and parliamentary changes.” I wanted to highlight what those are.

There are a few word choice changes to bring consistency among the new provisions from the Electoral Count Reform Act and the existing provisions of the Electoral Count Act, such as replacing the word “list” in places with “certificate of ascertainment,” as it relates to state results of the appointment of electors; changing “the” to “a” or “votes or papers” with “any vote or paper,” for some increased precision.

Three others more interesting (but still minor, parliamentary) details.

First, it renames the joint “meeting” a joint “session.” There’s a formal distinction between the two, and the modification of language brings it up to the appropriate title of “session.”

Second, in the two-hour debate period for any objections, it gives the majority and minority leaders equal time to parcel out up to five minutes’ debate per member. This is how it’s worked in practice, but it’s now codified.

Third, it specifies that objections and “questions” must be signed by 1/5 of the members of each chamber. This tidies up a precedent that arose in 2001, when Representative Ted Deutsch attempted to make a point of order to note the absence of a quorum. Vice President Al Gore ruled that the question was out of order: “The Chair rules, on the advice of the Parliamentarian, that the point of order that a quorum is not present is subject to the requirement that it be in writing and signed by both a Member of the House of Representatives and a Senator.” The “questions” language in the new ECRA tidies up this precedent by making it explicit.

Again, these are nitpicky language changes to the ECA, and the language of the ECRA largely tracks the manager’s amendment from the Senate Rules Committee, which had largely tracked the bipartisan negotiated deal that came from Senators Susan Collins and Joe Manchin. But if you really wanted to know what small changes arose, now you know.

The text of the omnibus bill has been released, and the bill includes the long-anticipated amendments to the Electoral Count Act. The text is almost identical to the Electoral Count Reform Act, the bill drafted and negotiated by Senators Susan Collins and Joe Manchin in a bipartisan group, then amended lightly in a thoroughly bipartisan Senate Rules Committee hearing led by Senators Amy Klobuchar and Roy Blunt. The text in the omnibus is the same as the text of the Electoral Count Reform Act as it came out of committee, with quite minor technical and parliamentary changes.

Election law scholars (myself included) were supportive of the specific details of this effort. Over at The Conversation, I highlight the major points of this bill. And the bill continues to attract broad bipartisan support (formally in the Senate, 21 Democrats and 16 Republicans have cosponsored, but others have expressed support in other ways, too). Just yesterday, Senator Rand Paul published an op-ed in support of the ECRA. It’s crucial for a bill to have broad, deep, and genuine bipartisan consensus, not token or minimal bipartisanship: in future political disputes, regardless of the partisan valence, the parties have the buy-in to adhere to the rules that they’ve agreed to well before any disputes arise.