In the immediate aftermath of passage of the Electoral Count Reform Act, I noted that state legislatures should look to update their laws surrounding the timing of elections and litigation disputes. And last year, I highlighted some states that have done so. But courts are taking the cue, too, in terms of their ability to expedite election litigation. Pennsylvania recently enacted new rules to speed up election disputes. And now Colorado has similar rules pending, as shared in this story over at Colorado Politics (the text is here). Ex ante rules for docket control are good tools for courts entering a contested election season.

Very much looking forward to moderating this event:

Hammer Forum

 Part of the series Hammer Forum: 2024 Presidential Election

Tuesday Oct 8, 2024 7:30 PM

Hammer Forums are made possible by the Rosenbloom Family. 

Co-presented with the Safeguarding Democracy Project at UCLA Law

Why does the United States use the Electoral College for choosing the President? Is the Electoral College a fair way to choose a President? What specific risks does the method for choosing electors pose for free and fair elections? How likely is the United States to adopt a national popular vote instead of the Electoral College? Moderated by Rick Hasen, UCLA Law. Panelists: Joey Fishkin, UCLA Law; Amanda Hollis-Brusky, Pomona College; Derek Muller, University of Notre Dame

Nate Cohn:

Ever since Donald J. Trump’s stunning victory in 2016 — when he lost the popular vote by almost three million votes but still triumphed with over 300 electoral votes — many who follow politics have believed Republicans hold an intractable advantage in the Electoral College.

But there’s growing evidence to support a surprising possibility: His once formidable advantage in the Electoral College is not as ironclad as many presumed. Instead, it might be shrinking.

According to The New York Times’s polling average, it does not seem that Kamala Harris will necessarily need to win the popular vote by much to prevail.

The simplest way to measure the advantage in the Electoral College is to take the difference between the national popular vote and the vote in the “tipping-point” state (the state that puts one candidate over the top in the Electoral College). Right now, Vice President Harris leads the polling in the national vote by 2.6 percentage points, and leads Wisconsin — the current tipping-point state — by 1.8 points, which makes Mr. Trump’s advantage less than a point.

By this measure, Mr. Trump’s advantage is only around one-fifth as large as it was four years ago, when he fared 3.8 points better nationally than in Wisconsin (the tipping-point state in 2020).

How is it possible?…

NY Times:

In Eastern Nebraska, far from the presidential battleground states, a drama is playing out that could, in a perfectly plausible November scenario, have history-altering repercussions for the nation’s future and the next president — and it may all come down to one man.

A single Republican state senator from Omaha, Mike McDonnell, has so far stood firm against a push by former President Donald J. Trump, national Republicans and the Nebraska G.O.P. to change Nebraska from a state that divides its electoral votes by congressional district to one that awards all of them to the statewide winner. Maine is the only other state without a winner-take-all system.

If Mr. McDonnell buckles, two other Republican senators in Nebraska’s unicameral legislature who have also not yet committed to changing Nebraska’s system are likely to follow his lead, according to a number of Republicans and Democrats involved in the discussions going on at the State Capitol….

As of Friday, Mr. McDonnell, who is barred by Nebraska’s term limits law from seeking re-election, had not changed his position.

“Senator McDonnell has heard a lot of compelling arguments for and against, but as of right now he still remains a no vote,” his spokesman, Barry Rubin, said on Friday. “The only way he would think about switching would be if someone gave him a compelling reason for why it made sense on the merits of the winner-take-all situation.”

Mr. Rubin said Mr. McDonnell was not weighing or asking for political favors from the Harris and Trump camps. “Nobody is offering anybody anything,” he said….

See also my earlier Slate piece, A Last-Minute Effort to Mess With the 2024 Vote Is Underway. It’s Scarier Than Expected.

Semafor:

The Trump campaign is making a last-ditch plea to Nebraska Republicans to change how their state awards electoral votes, switching to a winner-take-all system to deny Democrats a possible vote from the 2nd Congressional District.

South Carolina Sen. Lindsey Graham met with Republican senators in Lincoln on Wednesday, telling Semafor that Gov. Jim Pillen and Sen. Pete Ricketts invited him to talk about the campaign’s strategy. It’s a sign that Republicans are sweating every single electoral vote now that Vice President Kamala Harris is the Democratic nominee.

Both Pillen and Ricketts, himself a former governor, have endorsed the idea of eliminating the state’s electoral vote split, which has been in place since 1992; in 2008 and 2020, the Democratic presidential nominee carried the Omaha-based 2nd district. The meeting was first reported by Nebraska’s 1011 Now….

What’s frustrated conservatives all year about the Nebraska vote split is that the party isn’t using its majority to prevent a potential disaster — a one-vote electoral college defeat.

They have until the day before the election to change this system, and it’s too late for Maine Democrats to change their own electoral vote split to prevent its rural 2nd Congressional District from going to Trump. To implement that before Nov. 4, Maine Democrats would need a supermajority vote; Democrats control the legislature in Augusta, but they don’t have a supermajority.

Republicans may not have one in Nebraska, either. One of the votes they need would come from Mike McDonnell, a former Democrat who switched parties this year, citing his anti-abortion views. And he’s seen as a likely candidate for Omaha mayor next year; voting with Trump on this could be politically toxic in a city that keeps moving to the left.

The Electoral Count Reform Act was only a part of the reforms a bipartisan Senate working group developed in relation to presidential elections. Another was the Presidential Transition Improvement Act to help facilitate a new administration’s ability to hit the ground running, even in the event of a disputed presidential election. (I testified a bit about this part of the bill here.) The latest version of the law is here. The General Services Administration has updated its guidance ahead of the 2024 election here. As GSA explains, “Under the new law, post-election transition services begin immediately after a concession. Absent a concession within 5 days of the election, services begin automatically for all remaining eligible candidates – and will conclude for all but one apparent successful candidate when Congressionally-established factors are met. As a result of this change, an affirmative ‘ascertainment’ by GSA is no longer a prerequisite for gaining transition support services.” And for some of the language in the statute on (some of) those factors:

(B) On or after the date that is 5 days after the date of the election, the Administrator may determine that a single candidate for the office of President or Vice President shall be treated as the sole apparent successful candidate for that office pursuant to subparagraph (A)(iii) if it is substantially certain the candidate will receive a majority of the pledged votes of electors, based on consideration of the following factors:

(i) The results of the election for such office in States in which significant legal challenges that could alter the outcome of the election in the State have been substantially resolved, such that the outcome is substantially certain.

(ii) The certified results of the election for such office in States in which the certification is complete.

(iii) The results of the election for such office in States in which there is substantial certainty of an apparent successful candidate based on the totality of the circumstances.

(Sorry, botched the GSA title in the first post!)

Readers of the Election Law Blog can receive a complimentary FREE copy of the new edition of Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote. The book has 1,214 pages, 226 tables, 92 figures, and 2,340 footnotes.

The book covers:

• shortcomings of the current system of electing the President

• history of the Electoral College

• how the Electoral College works today

• various proposals to reform the system

• background on interstate compacts

• section-by-section analysis of the National Popular Vote Interstate Compact

• strategies for enacting National Popular Vote

• how presidential campaigns are currently run, and how a nationwide presidential campaign would be run

• answers to 175 misstatements and myths about a nationwide vote for President and the National Popular Vote Interstate Compact.

Click here to receive a FREE copy of the book. Offer limited to the first 2,000 requests and expires in three days. The book will be mailed to you in early October. The book will be available for purchase from Amazon in October.

Joe Davidson column:

Unless blocked by the courts, the National Popular Vote would take effect when states with electoral votes totaling at least 270 — the number needed for victory — agree to participate. That’s just over half of all 538 votes. “Then, the presidential candidate receiving the most popular votes in all 50 states and DC will get all the electoral votes from all of the enacting states,” according to the campaign, ensuring majority will rules.

So far, 17 states and the District, with a combined 209 electoral votes, have approved the National Popular Vote. Minnesota Gov. Tim Walz, the Democratic vice-presidential candidate, signed legislation accepting the National Popular Vote for his state last year. The presidential campaigns of Vice President Kamala Harris, the Democratic nominee, and Trump did not respond to questions about the electoral college.

“I’m increasingly confident that we are watching the last election under the current system,” said Patrick Rosenstiel, a National Popular Vote senior consultant. “We can have a national popular vote election in 2028.” Maryland was the first state to join in 2007. The last was Maine in April.

Rosenstiel is optimistic about the 2028 timeline, because, he said, “the proposal has passed at least one legislative chamber in seven additional states with 74 electoral votes, more than the 61 electoral votes needed for the proposal to take effect.”

His optimism is bolstered by strong public support for a more democratic system that ensures the candidate with the most popular votes wins. Sixty-five percent of adults in a 2023 Pew Research Center survey favored that. Among the coming generation, 18 to 29 years old, that jumps to 70 percent. But there is a wide ideological and partisan split. Just 36 percent of conservatives and 47 percent of people identifying as Republican or GOP leaning want to change the current system. That compares with 88 percent of liberals and 82 percent of Democrats and Democratic-leaning people favoring changes….

Interview.

Rachel Maddow has a piece in the New York Times on the topic du jour of 2024 election commentary, here about certifying election results. (Other recent pieces in this oeuvre include Reuters and the Guardian.) I’ll just draw from an excerpt of the disaster-casting piece:

Then, local news headlines start to circulate. There are reports of unspecified “problems” in the vote in Fulton County. And in Gwinnett County. And in DeKalb, Coffee and Spalding Counties. Republican officials are refusing to certify the results in their counties. They say they are making “reasonable inquiries.”

As legal challenges wend through the courts, a wave of disinformation, confusion and propaganda swells, fueled by unproven claims that something is amiss in these Georgia counties, and also by similar noise — and possibly also certification refusals — in Michigan, Pennsylvania, New Mexico and Nevada. (All have seen local Republicans try the certification refusal ruse since 2020.)

Under recently revised federal law, each state has until Dec. 11 to send official, certified state results to Washington for the Electoral College count. But if a state doesn’t meet that deadline, then what?

The point of these certification refusals may not be to falsify or flip a result, but simply to prevent the emergence of one. If one or more states fail to produce official results, blocking any candidate from reaching 270 electoral votes, the 12th Amendment prescribes Gerald L.K. Smith’s dream scenario: a vote in the newly elected House of Representatives to determine the presidency.

As I’ve blogged, I don’t think the Georgia election rules will allow any election body to miss a deadline, & even if it’s a pretext for missing a certification deadline mandamus is readily available to correct. Additionally, of all of the local election officials who “tried” to refuse to certify election results since 2020, exactly zero have been successful–and exactly zero even missed the ultimate statutory deadline. It’s possible that changes in 2024, of course, but if we’re looking at past results, we might want to look at past success rates, too.

But Maddow also misreads the Electoral Count Reform Act. She is incorrect when she writes, “each state has until Dec. 11 to send official, certified state results to Washington for the Electoral College count.” That is not what the ECRA requires.

The ECRA states, “Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors . . . .” That deadline is placed on the executive, not the state itself.

She asks, “if a state doesn’t meet that deadline, then what?” Well, the ECRA helps answer that, too. The section continues, “Any certificate of ascertainment of appointment of electors required to be issued or revised by any State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.” That is, the ECRA anticipates that there may be disputes that miss the six-day window. Judicial relief that comes after that, but before the electors meet, is “conclusive in Congress,” as the ECRA explains elsewhere.

She continues, “If one or more states fail to produce official results, blocking any candidate from reaching 270 electoral votes . . . .” But that’s not right, either.

If a state fails to produce a certificate of election, the state has failed to “appoint” electors under the Twelfth Amendment. Put differently, you would no longer need 270 votes to win the presidency. You would need something else. Suppose, in some fanciful universe, Wisconsin failed to certify its election results and appoint 10 electors. (This has happened before, like in 1789, when New York failed to send any electors.) The total electors appointed would be 528, not 538. The total number to win would be 265, not 270. Unless we had votes cast for third-party candidates or a tie, someone would still have a majority. No election would be sent to the House.

The Twelfth Amendment and the ECRA help reduce some of the disaster scenarios for 2024. Of course, nothing can anticipate every circumstance. But we’re in better position than some disaster pieces suggest.