Category Archives: electoral college

Greg Sargent: “New Trumpist threats in Arizona make electoral college reform urgent”

Greg Sargent WaPo column:

At first glance, the spectacle of the Incredible Shrinking Kari Lake might be cause for optimism. Lake is contesting her loss in the Arizona governor’s race, but in so doing, she’s shriveling into an almost cartoonish figure with no hope of prevailing — a sign, along with the defeat of other key election deniers, that this year’s outcome has sharply diminished the denialist threat.

But on closer inspection, the efforts by Lake and other Republicans allied with her — which include refusing to certify election results — show that the threat of Trumpist election denialis very much alive. This strengthens the case for fixing the Electoral Count Act of 1887, which would safeguard against such threats in the future.

Unfortunately, some election reformers are worried that mending the ECA might not get done in the lame-duck session. That would mean it doesn’t get done at all once Republicans take control of the House next year.

“I’m deeply concerned,” Matthew A. Seligman, a legal scholar and longtime proponent of ECA reform, tells me. “It’s getting late. I’m concerned that things are slipping.”

Election law scholar Richard L. Hasen adds that he’d like to see Democratic leaders “affirmatively” declare that ECA reform is a lame-duck “priority.”

“There’s no way Republicans in the House are going to move anything changing the rules that Donald Trump tried to exploit,” Hasen told me. Trump’s 2020 election-theft effort tried to exploit many of the ECA’s flaws, and thereform under considerationwould close off those pathways to a future stolen election.

Versions of ECA reform have advanced in the Senate and the House, but it’s hard to see either passing as a stand-alone bill with only a few weeks left in the lame-duck session. That would chew up valuable floor time with much else left to do, including funding the entire government.

So, the most likely option at this point, a congressional aide tells me, is for ECA reform to get attached to thatend-of-year spending bill. It’s reasonable to worry this might not happen, or to remain vigilant until it gets done.

The case for attaching ECA reform to a spending bill is complicated. Right now, 10 GOP senators support the Senate version of reform — the number required to overcome a filibuster. Yet even ifECA reform were to geta stand-alone vote, Trumpist GOP senators — such as Josh Hawley of Missouri or Ted Cruz of Texas — could seek to derail it with poison-pill amendments.

What’s more, a stand-alone vote could raise the profile of ECA reform, subjecting it to attacks from Trump and others. That could drive away some of those 10 supportive GOP senators. Attaching reform to a spending bill might get it through with less attention.

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What the litigation path of eligibility challenges to Donald Trump may look like

If I had a crystal ball into the future of litigation surrounding Donald Trump’s candidacy for the Republican presidential nomination, I would project something like this: In January 2024, administrative tribunals in Illinois and New Hampshire will issue the first decisions on the merits examining whether Trump is eligible to appear on the ballot for the presidential primaries. That will be the first merits decision in a torrent of litigation with an unknown future.

I’ve exhaustively followed presidential qualifications challenges in recent years (including a string of 2016 challenges), and I hope to offer at least a modestly informed take of where things might go. This post is a short-ish walk through what that might look like (with no examination on the merits, only the election qualification litigation process). Of course, others may sue (or attempt to sue) earlier, and there are other avenues where the litigation may lead, but this is the most likely way forward.

Continue reading What the litigation path of eligibility challenges to Donald Trump may look like
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Amending the Electoral Count Act doesn’t concede that Trump was right about Pence’s role on January 6, 2021

I’ve seen occasional (and perhaps we’ll see them grow increasingly frequent) comments about proposals to amend the Electoral Count Act of 1887 make a similar argument. Amendment proposals (including the Electoral Count Reform Act) will expressly provide that the President of the Senate’s role is “ministerial.” Doesn’t that mean (some wonder) that President Trump had a point ahead of January 6, 2021: that Vice President Pence did in fact have some discretion to refuse to count electoral votes, and now Congress is scrambling to stop it in the future?

No, for three reasons.

First, proposals presented to President Trump and to Vice President Pence called for Pence to ignore the Electoral Count Act. They argued that the Act is unconstitutional and that the President of the Senate could simply ignore it. Those arguments rested on a different premise: that the President of the Senate, not Congress, counts electoral votes. (I trace, and reject, some of these arguments here and here.) And amending the Act really doesn’t change that.

Second, one can clarify ambiguities in a statute without conceding that the ambiguities should have been construed to grant the President of the Senate any power under the Act (and, again, see the first point about the actual arguments advanced ahead of January 6, 2021). Clarifying ambiguities provides important value: to prevent future confusion or attempts to exploit those ambiguities in ways inconsistent with the Act.

Third, others have suggested there are existing ambiguities inside the Electoral Count Act that they desire future Presidents of the Senate to exploit in the future. (For that, see my post here.) Cutting off the threat of future problems is an important component of ECA reform, and it’s addressing an issue different from the reactions to past experienced weaknesses in the law.

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“McConnell seeks a Jan. 6 mop-up on his terms”

Politico:

Mitch McConnell opposed conviction in Donald Trump’s second impeachment trial. He may yet help clean up the mess of Jan. 6.

Things are playing out differently in the Senate GOP after only nine House Republicans — all of them retiring from Congress — supported updating a 19th-century law that Trump’s allies sought to manipulate to keep him in power. Even as House GOP leaders whipped against the post-Jan. 6 legislation this week, McConnell has encouraged his members to seek a deal with Democrats and is himself leaning toward backing the effort, according to senators in both parties.

I presume that if we get the bill that was negotiated by the bipartisan group, that he’ll support it,” said Sen. Mitt Romney (R-Utah).

So far, the Kentucky Republican is keeping tight-lipped publicly amid the tension in his party over how to handle a bill directly aimed at Trump’s push to overturn his 2020 election loss, as well as the GOP lawmakers who objected to President Joe Biden’s Electoral College win. In a brief interview this week, McConnell said Congress does “need to fix” the 1887 law known as the Electoral Count Act. “And I’ll have more to say about my feelings about that later.”

He’s likely to reveal his position Tuesday, when the Rules Committee votes on the Senate legislation. McConnell is a member of the panel, alongside Majority Leader Chuck Schumer (D-N.Y.), who supports the effort….

The Rules Committee is scheduled to mark up the bipartisan bill Tuesday and is expected to make changes after receiving feedback from election law experts in August….

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Judge Luttig Likes the Cheney-Lofgren Bill to Change the Electoral Count Act, Urges House and Senate to Compromise to Pass an anti Election Subversion Bill

Thread begins here:

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Lofgren-Cheney proposal to amend Electoral Count Act would create new federal cause of action over ballot tabulation

There’s a lot to say about e Lofgren-Cheney proposal (the “Presidential Election Reform Act”) to amend the Electoral Count Act of 1887, released yesterday and potentially voted upon by the House tomorrow (a very compressed timeline for public conversation about an important bill where the technical mechanisms matter a lot). It contains many details quite similar to the Electoral Count Reform Act introduced in the Senate, which has 10 Republican and 8 Democratic co-sponsors. And it diverges in a couple of areas, including how it handles emergency provisions for Election Day (some of the complexities I discussed here in the King-Klobuchar-Durbin discussion draft, and I have some of the same surface-level concerns with implementation in this draft, particularly with novelty of a cause of action in a time of crisis), and a cause of action to compel the state executive to transmit an accurate certificate of election (the complexities of causes of action I discussed here with the King-Klobuchar-Durbin bill).

I think these and other items (enumerating objections, the threshold for objections, etc.) reflect some of the good-faith disagreements about implementation that the Senate bipartisan group worked through to the Electoral Count Reform Act (although, so far, I’m partial to the language of the Senate bill), and it will be interesting to see how the process plays out.

But one provision near the end is worth some immediate discussion. The bill has three new federal causes of action, new ways to sue in federal court (two of which I just mentioned), and the third is notable. And it has potentially significant effects in future election litigation. As a standalone provision not really related to the rest of the bill, it’s not as crucial to the rest of the bill (or really directly addresses concerns about the Electoral Count Act in particular), and it’s something easily removed before amending the Electoral Count Act. But I wanted to highlight what it does and some questions I have about it.

Continue reading Lofgren-Cheney proposal to amend Electoral Count Act would create new federal cause of action over ballot tabulation
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“Congress’ latest House-Senate wrangle: Preventing the next Jan. 6”

Politico:

Efforts to reform an obscure 135-year-old election law, which Donald Trump tried to utilize to subvert the 2020 election, are reviving a classic congressional rivalry: the House vs. the Senate.

After signaling for months that they wanted to go further than the Senate’s proposed adjustments to the law, House members could vote as early as Wednesday on legislation to update the Electoral Count Act, the 1887 statute that Trump and his allies distorted in an attempt to seize a second term he didn’t win.

Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), members of the Jan. 6 select committee, on Monday outlined a proposal aimed at preventing rogue state officials and members of Congress from any future attempt at subversion of the transfer of presidential power. That plan is likely to set up an intense period of wrangling with the Senate, which in July teed up a competing bill that boasts bipartisan support, including the 10 GOP co-sponsors necessary to overcome a filibuster.

Their proposal reforms the 19th-century law, which sets out deadlines for states to certify their own presidential contests and a process to deliver electors to Washington. The Electoral Count Act then sets out a process for the vice president — acting as president of the Senate — to preside over the count, and outlines a procedure for lawmakers to challenge any electors they deem invalid.

The House version is substantially similar to the Senate bill, though it proposes slight variations and lays out certain processes in more detail. House members’ insistence on releasing their own bill is the latest episode in the simmering tensions between the two chambers as they enter their final stretch of legislating in this Congress, with lower-chamber Democrats hoping to go from bill text to passage within a week and the Senate moving more slowly, expecting to hold a markup of their legislation — while retaining GOP support — next week.

Utah Sen. Mitt Romney, one of the GOP co-sponsors of the Senate bill, said he’d review the House bill and noted “there were a number of similar points.” But Romney called on Majority Leader Chuck Schumer (D-N.Y.) to hold a vote on the Senate’s version.

“Our proposal, we thought, would be met with the greatest degree of support and actually become law and not just a message,” Romney said.

House lawmakers, on the other hand, were optimistic they could close the gap between the two chambers’ bills….

The Senate bill provides different categories for what constitutes a valid challenge, namely that electors weren’t “lawfully certified” or if the “vote of one or more electors has not been regularly given.”

But the House bill outlines several more categories, such as a state’s submission of more electors than it lawfully has, ineligibility of electors or an elector’s attempted vote for a candidate who would violate the 14th Amendment by having “engaged in insurrection or rebellion.” A New Mexico state judge ruled earlier this month that a county commissioner who was at the Capitol on Jan. 6 was disbarred from holding office under the same provision.

The split reflects fundamental differences in the internal politics of both chambers. The House, driven by the Jan. 6 committee’s probe, has made the focus of its legislative efforts explicitly about preventing a Trumpian sequel to last year’s siege. The Senate, on the other hand, has cast its effort as a bipartisan buffing-up of a rusty law at the heart of the democratic process.

One difference that underscores the divide: The House’s bill includes a section of “findings” describing the basis for the proposal as rooted in Trump’s efforts on Jan. 6; the Senate version has nothing similar.

Blunt said that language was a bridge too far for his party, quipping that it wouldn’t be “somewhere we would have gone.” Though, he added, it was still “appropriate” for senators to see if they could incorporate anything in the House proposal.

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Cheney-Lofgren Bill to Amend the Electoral Count Act Lists Permissible Bases to Object to Counting Certain Electors, Including that Candidate is Ineligible for President Because of Participation in an Insurrection

I’ve just begun reviewing the draft Cheney-Lofgren bill to reform the Electoral Count Act. It is very much in line with the spirit of the Collins-Manchin bill in the Senate, but differs in some particulars. For example, it has a specific definition of catastrophic events that would justify a state choosing electors after election day. It raises to 1/3 of each house the number of objectors to require debates in each house to objections. (Updated)

But what caught my eye now is a provision that lists the acceptable bases for an objection. And among them is this:

‘(D) One or more of the State’s electoral votes were cast for a candidate who is ineligible for the office of president or vice president pursuant to—

(iii) section 3 of the Fourteenth Amendment to the Constitution of the United States

This appears to explicitly recognize a challenge in Congress to reject votes for Donald Trump in 2024, for example, based on the idea he is ineligible to be elected President in 2024 because he participated in an insurrection in 2020.

This will be an interesting aspect of this debate, and we’ll see what happens with this provision if there are negotiations over the Senate and House billls.

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“We Have a Bill to Help Prevent Another Jan. 6 Attack; It’s past time to reform the Electoral Count Act to make clear Congress can’t overturn an election result.”

Liz Cheney and Zoe Lofgren oped in the WSJ (with a proposal that sounds very much in line with Collins-Manchin):

Despite this, Mr. Trump continues to make intentionally false election-fraud allegations, claiming that he should be reinstalled as president. And current candidates for key offices—who could themselves try to change the outcome of future elections—also embrace those lies and other groundless conspiracy theories. This raises the prospect of another effort to steal a presidential election, perhaps with another attempt to corrupt Congress’s proceeding to tally electoral votes.

To address this prospect, this week we will propose reforms to the Electoral Count Act to protect the rule of law and ensure that future efforts to attack the integrity of presidential elections can’t succeed. Our proposal will be founded on four fundamental principles:

First, we must reaffirm what the Constitution and existing law already make plain: The vice president (who acts as presiding officer for a joint session of Congress in a presidential election) has no authority or discretion to reject official state electoral slates, to delay the count in any material way, or to issue procedural rulings that have such an effect. The 12th Amendment is straightforward; it simply requires counting: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.”

Second, if members of Congress have any right to object to electoral slates, the grounds for such objections should be narrow. Congress doesn’t sit as a court of last resort, capable of overruling state and federal judges to alter the electoral outcome. If any objections are allowed during the joint session, grounds should be limited to the explicit constitutional requirements for candidate and elector eligibility and the 12th Amendment’s explicit requirements for elector balloting. Objections would require one-third of each chamber to be entertained and majority votes to be sustained.

Third, governors must transmit lawful election results to Congress; if they fail to fulfill that duty, or another official prevents the lawful results from being transmitted, candidates for the presidency should be able to sue in federal court to ensure that Congress receives the state’s lawful certificate. These suits would occur before Congress counts electoral votes, and should ensure, in all cases where one candidate has the majority of electoral votes, that Congress’s proceeding on Jan. 6 is purely ministerial.

Finally, federal law must make clear that the rules governing an election can’t change after the election has occurred. The Constitution assigns an important duty to state legislatures, to determine the manner in which the states appoint their electors. But this shouldn’t be misread to allow state legislators to change the election rules retroactively to alter the outcome.

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“House members roll out bipartisan election bill aimed at preventing future coups”

NBC News:

A pair of centrist House lawmakers on Wednesday is rolling out a bill aimed at preventing stolen elections in the wake of the Jan. 6 attack, mirroring bipartisan legislation in the Senate, NBC News has learned.

Moderate Reps. Josh Gottheimer, D-N.J., and Fred Upton, R-Mich., are co-sponsoring the House legislation, known as the Electoral Count Reform and Presidential Transition Improvement Act, which would overhaul the antiquated 1887 Electoral Count Act.

They are introducing the bill now to give a boost of momentum to the Senate effort, led by Sens. Joe Manchin, D-W.Va., and Susan Collins, R-Maine, with timing running short in this Congress.

Both bills are aimed at preventing future coup attempts by clarifying the limited role of the vice president in counting Electoral College votes, raising the threshold for members of Congress to object to states’ presidential electors, beefing up laws around certifying elections for the rightful winner and promoting an orderly presidential transition

The bipartisan House duo is also trying to get out in front of a rival election-reform bill by two Jan. 6 committee members, Reps. Liz Cheney, R-Wyo., and Zoe Lofgren, D-Calif., the House Administration Committee chair who is close to Speaker Nancy Pelosi. That rival bill is expected to be unveiled this week and be broader than the Gottheimer-Upton bill.

Separately, the Jan. 6 committee is expected to unveil its own set of legislative recommendations this fall to ensure an attempt to overturn a U.S. election, like what happened on Jan. 6, 2021, never happens again.

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“Congress may force election deniers to get a lot more creative; How a few election law fixes could protect democracy in 2024.”

Ben Jacobs for Vox:

The human mind is ingenious. It can create towering works of art and make remarkable scientific discoveries. It is, as we saw in the aftermath of the 2020 presidential election, also capable of inventing new ways to undermine American democracy by abusing our existing election laws, and turning orderly presidential elections into anarchy and chaos.

It’s beyond the ken of lawmakers, or perhaps anyone, to try to sniff out every potential avenue for havoc. But they can fix obvious defects in presidential elections once they have been exploited.

The Electoral Count Reform Act currently before the Senate is an effort to do that, fitting into a long history of legislative action following a breakdown in the existing laws. It’s not a bold reinvention of the American electoral system, but a series of bureaucratic reforms, requiring careful legal craftwork, intended to patch frays and holes in the United States Code. To do that, it updates antiquated language, clarifies contested issues, and streamlines the process to follow if a once-in-a-century political crisis occurs.

The new legislation is not intended as a foolproof fix to avoid future issues — after all, who could have predicted that a mob featuring a man in a Viking costume would storm the Capitol chanting “hang Mike Pence”? But it does eliminate many of the ambiguities exploited by Trump and his allies in the 2020 election and ensures that anyone intent on trying to reverse a presidential election in the future will have to rely on their own ingenuity, and not the road map of 2020.

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Bauer and Goldsmith: “Clarity about the Electoral Count Reform Act and Gubernatorial Certification.”

The following is a guest post from Bob Bauer and Jack Goldsmith:

In a thoughtful editorial, the Washington Post has stressed the importance of congressional action this fall on Electoral Count Act reform. It correctly identifies the Senate bill put forward by a bipartisan group led by Senators Collins and Manchin as the “plausible path through Congress” for this reform and “an achievement given today’s politics.” All in all, the Post says, it is a “remarkable compromise.” While noting that the bill is subject to improvement on specific issues, the Post also cautions that the amendments process should not “imperil the entire enterprise.”

One potential improvement that the editorial mentions would clarify that the slate of electors certified by a governor cannot be treated as “conclusive” and is subject to challenge in court or before the Congress. It describes this potential change as “trickier” than others but “perhaps still achievable.” The worry here seems to be that the Bill as written leaves open the possibility that an invalid or corrupt gubernatorial certification could have the final say on which electors from the State Congress must credit.

This worry is misplaced. The Senate bill provides, in clear terms, that any gubernatorial certification is, in fact, subject to legal challenge and does not bind the Congress if, upon suit by a presidential or vice-presidential candidate, a federal court determines that the governor’s certification does not reflect the outcome of the election as determined by state laws in place on Election Day. It is the ultimate judicial determination, not the governor’s initial issuance, which is treated as conclusive for Congress’s purposes in its final tally of any state’s electoral votes.

A further clarification of the Bill’s express intent would not, in fact, be tricky or unachievable. It can be done. At the same time, in fairness to the careful drafting reflected in the current version of the Bill, it is worth showing how that it treats as “conclusive” the outcome of the judicial review of any challenged gubernatorial certificate.

The relevant provisions of the bill, in § 5, bear citing in full to lay to rest any question. Section 5(a)(1) of the bill requires the governor of each state to “issue a certificate of ascertainment of appointment of electors, under and in pursuance of” the relevant laws of the State enacted prior to election day.  It prescribes the form the certificate must take, and the Governor’s duties to transmit the certificate to the Archivist of the United States. 

But that is not the end of the matter.  Section 5 also addresses what happens if there are irregularities in the Governor’s certificate of ascertainment.

Section 5(c)(1)(A) provides that “the certificate of ascertainment of appointment of electors issued pursuant to this section shall be treated as conclusive with respect to the determination of electors appointed by the State.” (emphasis added). The certificate of ascertainment deemed to be “conclusive,” therefore, is the one that emerges from the entire process outlined in Section 5. 

The Section 5 process makes clear that the Governor’s decision is not the final word.  The very next sentence of the bill, 5(c)(1)(B), provides that “[a]ny certificate of ascertainment … [submitted by a governor] as required to be revised by any subsequent state or federal judicial relief granted prior to the date of meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.” (emphasis added). The state or federal judicial relief contemplated here has a firm basis in pre-existing law, and the bill in Section 5(d) adds a venue provision and expedited review in the federal courts system.

After providing that certificates as required to be revised by state and federal courts must replace the Governor’s certificate, the Bill makes clear that it is these judicial determinations, and in particular the ultimate determination (if any) in federal courts, that has the final say on the content of the certificate. Section §5(c)(2) states: “The determination of federal courts on questions arising under the Constitution or laws of the United States with respect to a certificate of ascertainment of appointment of electors shall be conclusive.” 

In sum, the certificate “issued pursuant to” Section 5 that Section 5(c)(1)(A) says must be “treated as conclusive with respect to the determination of electors appointed by the State” is, as §5(c) makes explicit, the one as crafted after judicial review in federal court.

The bill also specifies that the conclusive character of this federal judicial determination specifically applies to Congress’ electoral vote count.  The bill addresses “Counting electoral votes in Congress” in Section 15.  Section 5 makes clear, in Section 5(c)(1), that the certificates that emerge from Section 5 and that “shall be treated as conclusive” are treated as conclusive “[f]or purposes of Section 15”—that is, for purposes of Congress’s electoral vote count.

So, could this point be further “clarified”?  Statutory language typically requires clarification only where there is some reasonable doubt about its meaning. But some might think that even in the absence of doubt, this clarification might have politically strategic value in the negotiation of fixes and tweaks to the Senate bill. On this theory, critics who misread the current language would be assuaged and one point of contention taken off the table.   

That is judgment is properly left to Members of Congress who best appreciate what is necessary to bring this reform to enactment. But any such clarification, if pursued for these purposes, should not understood to respond to a genuine drafting defect or omission in the current version.

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