Sen. Rubio Rightly Moves to Change Key Dates for the Electoral College Process

Good news:  Senator Marco Rubio (R-FL) has introduced a bill to extend the federal safe harbor period for states to determine electors from December 8, 2020 to January 1, 2021 for this year’s presidential election. He explains his position in this Medium post titled, Americans Should Expect Election Chaos.

Back in May, I called for pushing these dates back in the federal statute that governs presidential elections, when I identified several dates in the election calendar that should be changed for this fall.  Here is some of what I said then about the need for Congress to amend this law:

The last stages in the presidential election process are the casting of votes by the electors and the counting of those votes in Congress. …The framework statute governing the meeting of the Electoral College and the counting of the electoral votes is the Electoral Count Act, passed in 1887. The Act provides that Congress must count the electoral votes on January 6th, 2021. That date should not be changed; January 6th is the first date the newly-elected Congress meets and the President must, according to the Constitution, be inaugurated on Jan. 20th. But the two other key dates in Act, which might have made sense in the 19th century, can easily be moved back today; there is no contemporary policy reason these dates need to be fixed where they currently are. Pushing them back would not only provide breathing room for states to complete the vote count properly under the exceptional burdens this fall, but also for potential legal challenges.

The first is the date the electoral college formally votes. By law, that date is currently Dec. 14th. But there is then a gap of more than three weeks until Congress receives and counts those votes on Jan. 6th. . . . But there is no need for [that gap now]. Congress could easily push this date back several weeks. The electors could vote on Jan. 3rd, the same day the new Congress convenes (the Act currently requires the certifications of election to be transmitted by registered mail, but that could be changed to permit those votes to be transmitted electronically). … Moving this date back is key to relieving the vice-like pressure states will potentially experience in properly processing and counting the anticipated flood of absentee ballots.

[The second key date] is the so-called safe-harbor date, which provides that, if states certify the winner of the election by this date (technically, if they appoint a slate of electors) then Congress will be bound by that determination. This means Congress will not challenge the validity of those electors if they have been appointed by Dec. 8th. As the country learned in Bush v. Gore, this date puts states under tremendous pressure to complete their processes by then. But this date, too, can easily be moved back without compromising any policy concerns. If Congress moved back the date the electors vote by two weeks or so, it would move this safe-harbor date back by the same amount.

[To] deal with the foreseeable and unforeseeable problems that could arise from changing our election process almost overnight, pushing this date back would be good policy – particularly for this year’s election. [T]hese minor date changes to the Electoral Count Act should not be controversial . . . Congress would be doing the country a service if it held hearings and addressed the Act, at least for these two minor date issues (the Act is also notoriously ambiguous on other major issues and clearing up these ambiguities, before our next disputed election, would be wise).

Given the sensitivity of anything involving the Electoral Count Act, and Congress’ general propensity not to act before absolutely necessary, the prospects for Congress changing these dates in the Act are perhaps not promising. But moving these dates back would give election officials more time to manage successfully and with less controversy the extraordinary burdens they will likely face this fall.

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