Mike Parsons: “Counting on the Courts”

The following is a guest post from Mike Parsons (Senior Legal Fellow at FairVote and Program Affiliate Scholar at NYU Law):

Momentum to amend the Electoral Count Act is building across the ideological spectrum. And there is no shortage of good ideas on how to clarify the famously opaque law. For these reforms to have an enduring impact, they must be able to hold up under a broad range of conditions—with different parties controlling different pieces of the constitutional machinery at different times—and in an environment where trust in institutions is low and often tied to which party controls the institution in question. 

Already, the risks posed by 2024 are shaping up to be different than 2020. After the 2020 elections, state officials held the line and federal lawmakers raised baseless objections to legitimate state results. In 2024, the opposite may well be true, with local and state actors leveraging their powers to tilt the count towards a desired result or state legislators attempting to “reclaim” their power to appoint electors directly after election day in the face of alleged “irregularities.” In other words, reforms that are vital to protect against a resurgent 2020 threat—such as limiting congressional objections or clarifying the role of the Vice President—may not anticipate the full range of threats emerging ahead of 2024.

The challenge is to design a system that is credible across conflicting constituencies, stable as political power shifts from election to election, flexible in response to a variety of pressures, resistant to false or unsubstantiated narratives, and minimally susceptible to electoral pressures. One solution? Acknowledge the role that courts already play in our electoral process and prepare them to play that role more effectively in response to the foreseeable challenges ahead.  Courts performed admirably in the face of meritless lawsuits challenging the 2020 results, and many current democracy policy proposals (including ECA reform) contemplate courts playing an even greater part in future elections.  But if we’re going to count on the courts, we need to strengthen them so they can better navigate the unique sensitivities that arise in the electoral context. 

To safeguard an accurate count and enhance trust in election results, Congress could create bipartisan federal district courts to hear any challenges that could impact a state’s certified election results or the electors appointed pursuant to such results.  I’ve previously suggested using bipartisan courts for redistricting and voting rights cases, but here’s how such courts could be structured to handle the unique political and timing pressures of certification and counting cases: 

  • Sixteen months before election day, the chief judge for each U.S. Court of Appeals (except the Federal Circuit) would randomly select four judges to serve on a court for each state/territory within the circuit. Of these four, no more than two would be allowed to have been appointed by presidents of the same party.
  • Within thirty days, each state’s bipartisan set of four judges would be required to unanimously select a fifth judge. This fifth judge must be a district judge but could be drawn from any federal district court in the country. If the four judges cannot agree on a fifth, the chief judge of the circuit would draw a new set of four judges every thirty days until the four can reach consensus.
  • This bipartisan court—established well before election day and led by the unanimously selected fifth judge—would then hear any claims that arise within the state that challenge the validity, accuracy, or legitimacy of presidential election results or that seek any remedy that could impact which electors are appointed by the state.  Already, bills have been proposed that would create causes of action to challenge partisan removals, prevent officials from failing to certify results based on unsubstantiated allegations, or confirm whether a natural disaster or other emergency requires postponing a regularly scheduled popular election.  These claims would all be funneled to the state’s bipartisan federal court in the first instance.
  • The procedures governing such cases would set out clear (and uniform) filing deadlines for plaintiffs, scheduling and decisional expectations for the court, and a strict timeline for appeal, so a final resolution (and a single, reliable slate) could be determined prior to the congressional count.
  • Appeals from such courts would go directly to the U.S. Supreme Court, which could only reverse based on a unanimous judgment (rather than a simple majority of justices).

 Creating dedicated avenues to “check the work” of state officials in court and clarify the result prior to the congressional count would reduce the opportunities currently available for elected actors at the state and federal level to undermine or overturn popular election results.  And channeling disputes in this way would allow allegations of fraud or malfeasance to be tested in a setting more conducive to careful factual inquiry before a set of judges selected to enhance public trust in the impartiality of the result.  

None of this is to say that other ECA policy proposals are any less critical or that ECA reform should come at the expense of broader democracy reforms.  Bipartisan courts would strengthen the ECA proposals offered to date that rely upon judicial checks, and several pieces of the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act would safeguard the accuracy and integrity of the count with clearer and more uniform procedures that would make litigation less likely from the outset.  

But at a time when trust is in short supply, the question of “who decides” the merits of an accusation or the validity of a result is bound to be one of the most contested questions of all.  District courts fared well in the face of the unexpected after 2020. With a little help, they will be even better prepared to weather the unknown in 2024 and beyond.

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