“How Congress Could Diminish The Risks With Electoral-College Count”

As this blog recently noted here, Senator Rubio has introduced legislation to change the two key dates in the federal law that governs the electoral college process. Ned Foley and I today published this op-ed in The Hill, aiming to reaching legislators, which strongly endorses Senator Rubio’s proposal. An excerpt:

The presidential election will take place, as scheduled by law, on Nov. 3rd.   To deal with the unique circumstances under which this election will be conducted, Senator Marco Rubio has smartly introduced a new bill that would adjust two key – but now obsolete — dates in the federal law that governs the Electoral College process.  As we suggested back in May (and previously), these changes make good sense, should be uncontroversial, and deserve widespread bipartisan support. . . .

Even in ordinary circumstances, the time pressures to complete an accurate vote count in the two months between Election Day and early January can be intense.  Back in 2000, when the issue was “merely” an accurate recount in one state, the process was still not complete five weeks after Election Day, when the Supreme Court’s decision in Bush v. Gore stopped any further recounting.  

              This year is no ordinary circumstance and the challenges facing election officials nationwide are unprecedented.  In particular, the virus requires planning for a massive surge in absentee voting.  That means it is likely to take longer to complete the counting of all ballots.  The reason is not sinister; in many states, valid absentee ballots can arrive well after Election Day, and the process of verifying the integrity of those ballots takes time.  On top of that, some states, including potential swing states, have rules that block processing absentee ballots until Election Night or even later, which needlessly compounds these delays.  In addition, we have to anticipate court challenges to the process should the election be close. 

              Senator Rubio’s bill is a simple acknowledgement of this new reality.  The Electoral Count Act, which his bill would amend, is the federal law that governs the Electoral College process.  Passed in 1877, it currently requires that process to take place in December, a reflection of much slower late-19th century transportation and communication networks.  But as Senator Rubio’s bill recognizes, for this year at least, accurate ballot-counting would benefit from permitting the Electoral College process to take place several weeks later, perhaps as late as early January.


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