Russell Berman for The Atlantic.
Carl Hulse for the NYT:
Determined to prevent a repeat of the Jan. 6, 2021, assault on the Capitol, backers of an overhaul of the federal law governing the count of presidential electoral ballots pressed lawmakers on Wednesday to repair the flaws that President Donald J. Trump and his allies tried to exploit to reverse the 2020 results.
“There is nothing more essential to the orderly transfer of power than clear rules for effecting it,” Senator Susan Collins, Republican of Maine and one of the lead authors of a bill to update the 135-year-old Electoral Count Act, said Wednesday as the Senate Rules Committee began its review of the legislation. “I urge my colleagues in the Senate and the House to seize this opportunity to enact the sensible and much-needed reforms before the end of this Congress.”
Backers of the legislation, which has significant bipartisan support in the Senate, believe that a Republican takeover of the House in November and the beginning of the 2024 presidential election cycle could make it impossible to make major election law changes in the next Congress. They worry that, unless the outdated statute is changed, the shortcomings exposed by Mr. Trump’s unsuccessful effort to interfere with the counting of electoral votes could allow another effort to subvert the presidential election.
“The Electoral Count Act of 1887 just turned out to be more troublesome, potentially, than anybody had thought,” said Senator Roy Blunt of Missouri, the senior Republican on the rules panel. “The language of 1887 is really outdated and vague in so many ways. Both sides of the aisle want to update this act.”
But despite the emerging consensus, lawmakers also conceded that some adjustments to the proposed legislation were likely given concerns raised by election law experts. In attempting to solve some of the old measure’s problems, experts say, the new legislation could create new ones.
“It needs to be fixed,” Norm Eisen, an election and ethics expert and former special counsel to the House Judiciary Committee, said of the Electoral Count Act after his testimony Wednesday. “But it needs to be fixed correctly.”
And in the House, a group of lawmakers led by members of the special committee investigating the Jan. 6 attack were drafting their own bill, which was expected to have major differences from the one agreed upon by a bipartisan group of senators.
Larry Tribe, Erwin Chemerinsky, and Dennis Aftergut in WaPo opinion:
The law governing the counting of electoral votes in presidential elections is in desperate need of strengthening. But the changes now being considered in the Senate don’t go far enough.
President Donald Trump’s craven attempt to stay in power after his 2020 defeat exposed the frailties of the 1887 Electoral Count Act. The improved Electoral Count Reform Act, introduced in the Senate on July 20, is the product of herculean, months-long efforts led by Republican Susan Collins (Maine) and Democrat Joe Manchin III (W.Va.) to find common ground. As the Senate Rules Committee hears testimony on the measure Wednesday, it should correct some remaining flaws:…
The proposal before the Senate represents an excellent beginning. It must be strengthened to protect democracy in the final stages of selecting a president. But it’s equally vital to remember that not even a perfect way of counting the electoral votes at the tail end of the process can overcome unfair and undemocratic obstacles to casting ballots at the front end.
Our democracy will not be secure until we enact broader protection for voting rights. For now, however, improving the Electoral Count Reform Act would be a victory to celebrate.
The following is a guest post from Pam Karlan, now back at Stanford:
The Electoral Count Reform Act (ECRA) is a vast improvement over the existing Electoral Count Act of 1887, whose ambiguities and gaps became evident during the elections of 2000 and 2020. The ECRA makes a number of sensible and important changes to the law governing selecting the president. It repeals the “failed election” provision of 3 U.S.C. § 2—which some partisans have asserted empowers state legislatures to reject the popular vote and appoint a slate of electors themselves whenever they think the election was flawed in some undefined way. It creates an expedited process for judicial resolution of claims arising under federal law that also eliminates forum shopping. With respect to procedures within Congress, it raises the threshold for objections to accepting a state’s electoral votes, making it harder for a handful of hard-line members to transform the process into guerrilla theatre. And it clarifies that the Vice President’s role when the electoral votes “be counted” is purely ministerial: she or he cannot decide which votes should be counted and for whom.
But the core virtue of the ECRA goes well beyond its elaborations on the presidential election-specific provisions of Article II, § 1 or the Twelfth Amendment. Rather, it stems from the Act’s requirement in section 1 that the selection of presidential electors be made “in accordance with the laws of the State enacted prior to election day.” This requirement embodies a constitutional provision at the heart of the law of democracy: the Due Process Clause. Not only should this resolve questions about the ECRA’s constitutionality—properly understood, the Act represents “appropriate legislation” under Section 5 of the Fourteenth Amendment—but it situates the Act as a valuable first step in a larger conversation about election administration and voting rights.
As we explore in our casebook, The Law of Democracy, an important set of federal constitutional interests in election procedures revolve around two due process-based values. (For our most explicit discussion, see the materials on the Roe v. Alabama trilogy involving the question whether certain absentee ballots should have been counted in a judicial election.) The first is a reliance interest. The right to vote is a species of liberty (or perhaps property—the Supreme Court decisions do not expressly establish which) protected by the due process clause. In practice, this means that citizens are entitled to bank on the law in existence at the time they cast their votes. If state law tells them that their vote will go to determining their state’s slate of presidential electors, it would violate procedural due process for the state then to cancel that method after they have invested their time in casting a ballot in the presidential race. (There may even be a substantive due process interest at stake, as I suggested at a symposium following the 2000 presidential election. “[T]radition, as reflected in longstanding federal and state practices” has settled on popular election as the method of selecting electors, and our constitutional order may therefore have “simply evolved beyond the point at which a state can strip citizens of their right to participate in choosing the President.”) The ECRA vindicates this due process reliance interest by ensuring that citizens can make their decisions about electoral participation knowing that the law on the books when they vote will determine how electors are selected. They will not cast their votes in vain.
A second due process value at stake in the electoral context involves impartiality. Post-hoc changes in electoral rules threaten due process by injecting unconstitutional unfairness into the system. This takes a number of forms. It can involve outright bad faith: government actors who don’t like particular election outcomes can simply change the rules to change the results. But it can also involve more subtle forms of partiality in which decisionmakers’ answers to a specific legal question are unconsciously influenced by the partisan context in which the legal questions arise. And even if decisions are not in fact skewed by implicit (or explicit) bias, public faith in the impartiality of the process will be affected when the effect on electoral outcomes is obvious. This may be a particular risk for the judiciary: recall that in the post-2000 presidential election litigation, many Republicans were convinced that the Florida Supreme Court, a majority of whose members were Democrats, had changed the rules on which ballots should be counted to benefit Al Gore, while many Democrats were just as convinced that the Republican-nominated U.S. Supreme Court majority had made up new doctrines regarding the effect of the Electoral Count Act’s so-called safe harbor provision to benefit George W. Bush. Setting the rules for how a state selects its electors in advance, as the ECRA requires, both guards against the rules being changed by the states once their outcome effects in a specific election are obvious and creates clearer rules for the federal courts to enforce.
To be sure, the ECRA will not entirely solve the problem of determining the precise content of the “laws of the State enacted prior to election day.” There remains a possibility of arguments over whether a particular post-election administrative interpretation or state judicial decision has departed so significantly from either statutory text or consistent practice as to violate section 1’s requirement. But section 1 creates a powerful incentive for lawmakers to enact laws of sufficient specificity to minimize that risk. As long as the state announces its rules ahead of time, and those rules comply with federal law, those rules control the process.
Beyond the vast improvement the ECRA makes over the existing Electoral Count Act, the ECRA also offers an opportunity that voting rights lawyers and activists should take to restart the broader conversations over election administration and voting rights that seem to have stalled after the congressional failures to move forward on the For the People Act and the John Lewis Voting Rights Advancement Act.
As we point out in the preface to the sixth edition of The Law of Democracy, we live in an era characterized by democratic backsliding around the world; in our own polity, “[t]he right to participate is more fraught than it has been in quite some time, and there are more challenges to how and when voting might occur than in years past.”
Impartial election administration is under unprecedented pressure. Perhaps the bipartisan agreement on the importance of impartial rules that produced the ECRA can serve as a point of departure for building consensus on the need to enact legislation at both the federal and state level to modernize and safeguard nonpartisan election administration more generally. The Electoral Count Act, after all, is not the only element of current election administration that needs updating.
And perhaps the ECRA also offers a starting point for building broader support for the proposition that states should not be permitted to manipulate elections by changing the rules that determine who can vote and whose votes will be counted. We need to persuade the public that having “laws of the State enacted prior to election day” is a necessary, but not a sufficient, condition for ensuring that American elections are truly fair and democratic. Those laws need to provide all citizens with a full and equal opportunity, in the words of section 14(c)(1) of the Voting Rights Act, to register, cast a ballot, and have that ballot “counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” What the 2020 election cycle powerfully reminds us is that if we cannot conduct fair presidential elections, we won’t have the ability to obtain federal protection for voting rights more generally any time soon. By improving the presidential election process, the ECRA moves us one step closer to protecting democracy.
I was pleased to join a statement with Professors Foley, McConnell, Pildes, and Smith in support of the Electoral Count Reform Act. That statement includes a nice summary of the highlights of the legislation. I wanted to drill down on one feature of the Act (and there will be opportunity to drill down on many more elements!): the judicial review mechanism.
One prominent complexity of a previous “discussion draft” of ECA reform was considering how judicial review fit into the picture. Judicial review of election disputes looks very different in the 21st century than the 19th century, and the problems that might arise look different each election cycle. Florida 2000, Ohio 2004, myriad 2020 lawsuits, to name a few, each took different directions. So what would judicial review look like? I had a pretty good grasp on 3/4 of the “discussion draft’s” judicial mechanisms and blogged through it, and I thought I’d do the same with what’s happening in this bill, too.
There’s been some discussion about this already. There’s been some thoughts (across the spectrum!) from Marc Elias, Quin Hillyer at the Washington Examiner, Norm Eisen, and the Wall Street Journal editorial board expressing varying questions about the judicial review piece in the bill. Matthew Seligman offers his own thoughts in support.
I’ll take a longer look here, about what it does and doesn’t do–warning, some federal courts meandering ahead….Continue reading Some thoughts on the judicial review mechanism in the Electoral Count Reform Act
Politico reports that it may be: “Senators involved in the monthslong effort say they’re getting close to a deal. Their goal is passing legislation on the Electoral Count Act by the end of the year, well in advance of the 2024 campaign — and before House Republicans are poised to take power with little interest in addressing the topic. But any standalone bill they can get through the Senate could compete for attention and floor time with the Jan. 6 committee’s still-unreleased legislative recommendations.”
I have this updated piece at The Conversation on Electoral Count Act reform.
Josiah Daniel op-ed in the Dallas Morning News.
Josiah Daniel has posted this draft on SSRN. Here is the abstract:
Inspired by the April 4, 2022 issuance of “Principles for ECA Reform” by the working group convened by the American Law Institute, this paper makes three points. First, the history of the Electoral Count Act is longer than the working group acknowledged, dating from 1792, not 1887, and that history is essential to any attempt to understand the ECA. Second, the example of the previously unknown amendment made to the ECA in 1928 by Congressman Hatton W. Sumners of Dallas is important and useful to the project of considering reform or revision of the ECA. His amendment, known as House Bill 7373, was by far the most extensive of the limited number of post-1887 and 1888 amendments. Those 1887 and 1888 amendments had been inspired by the three months of controversy following the Hayes v. Tilden election of 1875. There was no such exigent imperative for Sumners’ proposal, but his legislation subserved the cause of “good government” and increased efficiency, transparency, and clarity in the interface between the Electoral College and the Congress. Third, while we do not know for certain, yet, the motivations and purposes of Sumners qua legislator of this amendment—the paper infers what those motivations were—, the specific legislative history of House Bill 7373 is interesting and useful.
The author concludes from the 1928 history that ECA revision may be possible, even today, if on a bipartisan basis, with a sponsor who is comfortable and capable of working with rational members of Congress across the aisle, and if the changes are in the nature of modernizations and tweakings of the Electoral College machinery. The paper closes with the hope that consideration of the history of the ECA will inform efforts to seek its amendment now.
Politico’s Betsy Woodruff Swan & Kyle Cheney have a three-page memo from Vice President Mike Pence’s attorney Greg Jacob on January 5, 2021. It appears he’s responding to a six-page memo from John Eastman (which followed a shorter memo), which Eastman apparently communicated to Pence on January 4.
Jacob does the best he can in a very short and pressured time period. He identifies the salient issues, but I do think he gets one thing wrong–in a way that gives too much credence to Eastman’s theory.
Jacob writes that in the event of competing slates of electors Article II places a “firm thumb on the scale” to the state legislature’s slate if the state legislature has chosen that slate, even if they chose a slate after Election Day. (That was the pitch Eastman and Rudy Giuliani unsuccessfully made to state legislatures.) But I don’t think that weeks after the election, the state legislature can simply pick an alternate slate of electors. The legislature already picked the manner of choosing electors (a popular vote). And that’s because Congress picked the time of choosing electors (the first Tuesday after the first Monday in November). I recently detailed this argument here at ELB. In short, it’s worth emphasizing that this isn’t a viable path. (Jacob had the luxury of the fact that no state legislatures had even attempted to do so, much less sent in a competing slate.)
There’s also an interesting conversation on the political question doctrine. Eastman “acknowledges that majorities in both the House and Senate would oppose his novel procedure.” But if Pence refused to go along with their objections, what might happen? An impasse in Congress? Rival statements of the electoral vote? In reality, swift litigation seemed likely. But what does the political question doctrine have to say about it? Jacob is skeptical that the political question would insulate judicial review of the Vice President’s decision.
Now, I think there’s a pretty strong textually-demonstrable commitment to Congress to count electoral and resolve disputes (a couple of dissenting opinions in Bush v. Gore actually went a touch further to earlier stages of the process). But Jacob here is engaged in realism. He twice notes “composition” (once described as “unfavorable” to Eastman’s position, another as the “present” composition “unlikely” to find a political question) of the D.C. Circuit. I don’t know if individual judges’ inclinations or one party’s appointees would be less inclined to adhere to the political question doctrine in an Electoral Count Act dispute. Or if the facts of this case made it less palatable to a Democratic-majority of the D.C. Circuit.
But Jacob avoids the thorny substance of the political question doctrine with a realistic, “If you try this, you’ll lose.” Less satisfying to the academic. Probably the short-term advice Pence needed that day.
Rick P. has posted something that I’ve been puzzling over for a while, and I’m glad he did so: there’s a formal legal distinction between the “Legislature Thereof Clauses,” more popularly known as the “independent state legislature doctrine” theory, and this concept that I’ll unhelpfully coin as the “Plenary Presidential Elector Selection Power Doctrine.” This doctrine has never been exercised in any form (with a caveat about Florida in 2000, which I’ll get to at the end), and it has never (to my knowledge) been defended in any academic literature. So where did it come from?Continue reading The (unsteady) origins of the Plenary Presidential Elector Selection Power Doctrine
That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.
The last presidential election was a dry run for the next.
From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.
The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump….
Trump and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.
Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.
Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.
The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.
Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.
Forewarned is to be forearmed.
Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.
Andrew Yang is the guest on the new must-listen episode of Sarah Longwell’s Focus Group podcast. They discuss the possibility of a significant third-party, or independent, candidate in the 2024 presidential race. Yang, who’s started his own Forward Party, essentially promises one–especially if the two major-party candidates are Biden and Trump again, although he doesn’t say he’ll necessarily be the candidate. He offers Mark Cuban as the example of a candidate who he thinks could compete effectively against both Biden and Trump.
Sarah Longwell expresses the concern that any third candidate would pull more votes from the Democratic nominee than from Trump, assuming that Trump is the GOP nominee. Fearing for the future of US democracy itself if Trump wins a second term, Longwell worries that any third candidacy (however well-intentioned) could end up devastating for the country by being the cause of Trump’s return to power. For what it’s worth, I share Longwell’s concern for the reasons she expresses.
Yang and Longwell also discuss the possibility of ranked-choice voting as a way to avoid the potential spoiler effect. Yang says he’s not willing to wait for ranked-choice voting to be in place in order for there to be a third-party candidate. While he’d prefer ranked-choice voting to come first, from his perspective disrupting the major-party duopoly (as he puts it) is necessary, even at the risk of creating a spoiler effect in 2024. At least, that’s how I heard him express his position on the podcast.
In any event, it’s time to dust off copies of Presidential Elections and Majority Rule, which discusses the importance of adopting ranked-choice voting on a state-by-state basis (like Maine and Alaska) as the method of appointing presidential electors, in order to guarantee that winner-take-all electoral votes are awarded to majority winners, thereby avoiding the potential “spoiler” effect of third-party or independent candidates.
Do we really want to be in the position where whether Trump wins or loses in 2024 depends on the idiosyncratic decision of an individual billionaire, like Mark Cuban, to enter the election as an alternative to both Trump and the Democratic nominee?
Congress is trying to strengthen the law, though with little to show for its work. For much of the past year, Democratic lawmakers who control both houses focused instead on broader election reform aimed at expanding voting rights. That initiative collapsed. Senate Democratic leader Chuck Schumer has at times portrayed the parallel effort to revise the Electoral Count Act as an unwanted distraction.
“There were a number of parties and nefarious actors back in 2020 that tried to weaponize the Electoral Count Act in ways that were deeply problematic,” Rep. Joe Neguse, D., Colo., who was a House prosecutor in Trump’s second impeachment trial, told NBC News. “It appears one component of that was this notion of fake electors being sent from the states, so I think it’s an area that we have to reform, and we have very little time to do so.”
What seems most likely to pass, if anything, are a few fixes for which there is a broad consensus. Congress may clarify that the vice president plays merely a ceremonial role when it’s time to count the electoral votes and cannot, as Trump argued, unilaterally reject the outcome in certain states. Lawmakers may also raise the threshold so that it takes more than a single member of the House and Senate to object to a state’s electoral votes and thus delay the formal certification of the incoming president’s victory.
One solution that election experts have proposed is giving the courts the final say if there’s any dispute about which slate of electors should be counted. That way, in an era of extreme partisanship, members of Congress and governors aren’t the ones settling disputes about who gets to be president.
“The most important question is how do we ensure there is no political actor in Congress or state government that can elevate those fake electors into something that might actually get counted,” said Matthew Seligman, a Yale Law School fellow who has been advising Congress on how best to revamp the Electoral Count Act, according to a Senate aide. “And, unfortunately, that’s exactly what the law permits.”
Whether the law gets changed in time for the next presidential election is by no means certain. Sen. Jeanne Shaheen, D-N.H., is part of a bipartisan group of senators working to revamp the Electoral Count Act. “It’s not clear” that the negotiations will result in passage of a bill, she told NBC News. “First of all, the group that has been working on it has to come to some agreement. And then we have to get agreement from the leadership on both sides.
“I do see it as a problem,” Shaheen said of the alternate electors. “Whether we can get agreement on how to address it remains to be seen.”