The ACS Expert Forum has posted my essay Reforming the Electoral Count Act requires bipartisan buy-in—Democrats can’t do it alone even with filibuster reform. I won’t repeat what I wrote there, but here are some points:
First, in my judgment Democrats should be strategizing about electoral reform priorities on the assumption that Republicans will control Congress on January 6, 2025. If that’s the case, it will be essential that a revised ECA have been adopted with Republican support beforehand. Otherwise, Republicans will be in position to repudiate the practice of concurrent resolutions by which each chamber of Congress agrees to abide by the ECA’s procedures notwithstanding the argument that the chambers cannot be constitutionally compelled by statute rather than the chamber’s own rules.
Second, given the objections to Biden’s electoral votes that Republicans in Congress (like Senator Josh Hawley and Representative Mo Brooks) raised on January 6, 2021, it’s essential that a revised ECA be unambiguous in making this kind of objection off-limits. That’s the main argument of the Washington Post op-ed I co-authored with Michael McConnell, Rick Pildes, and Brad Smith (based on the premise that this type of objection was just as inappropriate when made by Democrats, including Senator Barbara Boxer in challenging Ohio’s 2004 electoral votes for Bush).
Third, I recognize the concern of many Democrats right now that electoral subversion might occur in the states, instead of (or as well as) in Congress. I’ve been as alarmed as anyone about the possibility that Trump and his allies are endeavoring to make possible the repudiation of a valid result of the 2024 presidential election. As fearful as I am about this, I think it is crucial to recognize that the Equal Protection Clause constrains the power of state vote-counting officials to negate or distort the count of popular-vote ballots once they have been cast. Bush v. Gore, as controversial a decision as that was, is unambiguous in this respect (in a portion of the majority opinion that secured the support of seven justices at the time and has become accepted as a component of the right to equal participation in elections that the Fourteenth Amendment protects): “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”
Yes, I would much rather have Brad Raffensperger be involved in Georgia’s vote-counting process than Jody Hice (who’s embraced Trump’s claim that the 2020 election was stolen), and I find especially distressing the idea that state legislatures would involve themselves in the vote-counting process. But whatever institutions of state government are granted the authority to count, or recount, the popular-vote ballots cast in a presidential election, those institutions of state government must comply with the fundamental Equal Protection principle that all those ballots must be counted equally and thus honestly. Congress might enact some new carefully drafted legislation to implement more specifically this basic and important Equal Protection principle, but in the absence of such additional legislation, we have to assume that the federal courts will continue to enforce it as they have in the past (and not just in Bush v. Gore itself).
Thus, as between the risk of election subversion by state officials or election subversion by Congress itself, the much greater risk in need of congressional legislation right now is the latter, which can be addressed only by the ECA being revised on a bipartisan basis.
One more key point along these lines: there is a particular fear that in 2024 state legislatures may attempt, after the popular vote has been held, to reassert a power to appoint presidential electors directly regardless of the result of an accurate count of the popular vote. State legislatures, however, lack this power for this reason: Article II of the Constitution authorizes Congress to “determine the time of choosing the electors.” Exercising that power, Congress has designated the first Tuesday after the first Monday in November as when the appointment of each state’s electors must occur, whatever the means that a state has chosen to appoint its electors. Thus, when a state has decided to hold a popular vote to appoint electors, that popular vote must occur on the designated day, which we colloquially refer to as Election Day. (Yes, there’s now early voting, and absentee voting, and all the ballots must be counted, but as a matter of law the appointment of the electors occurs as a result of the ballots cast in the popular-vote election held on the congressionally required date.)
Once that popular vote has been held for the purpose of appointing electors, state legislatures are constitutionally powerless to choose a different “manner” of appointing electors for that year’s presidential election. The appointment already has occurred by the popular-vote ballots having been cast (although the “ascertainment” of that already-occurred appointment, to use the language of the Electoral Count Act, is still to be completed through the counting, and potentially recounting, of the ballots). To be sure, if a state really has “failed” to conduct an election on the congressionally designated day (because of an earthquake or some other major disaster), the Congress allows a state’s legislature to choose a new method of appointing electors on a subsequent day. But when the popular-vote election has been held, and the ballots cast are capable of being counted, it is untenable for any state legislature to contend that the election has “failed” as a prerequisite for permitting the legislature to choose a new method of appointing that year’s electors. (A revised ECA usefully could tighten up the existing statutory language relating to the very limited circumstances in which a truly “failed” election exists.)
One key goal of a revised ECA, in my judgment, would be to make clear that if a state legislature attempted to send Congress a rival submission of electoral votes (in opposition to the electoral votes cast by electors appointed pursuant to the final count of popular-vote ballots) based on the state legislature’s claim to appoint electors directly after the popular-vote appointment has occurred, then Congress is constitutionally obligated to count the electoral votes based on the popular vote, and not the rival submission of electoral votes based on the too-late assertion by the state legislature of a power to appoint electors directly. Right now, the existing ECA is insufficiently clear on this point, and this ambiguity is especially dangerous. Properly understood, the so-called “safe harbor” provision of the ECA already provides for this, because Congress has promised to consider “conclusive” any adjudication that determines the final tally of the popular vote pursuant to state laws existing prior to the appointment of electors by means of the popular vote on Election Day. But this particular significance of the safe-harbor provision is not widely understood, and clarification of the ECA on this point is crucial.
Like many others, I have a wish-list of electoral reforms I’m impatient for Congress to adopt. In particular, I’ve been incessantly pleading Congress to end gerrymandering. But if you are (like I am) especially worried about Trump trying to subvert the result of the popular-vote in the 2024 election, by attempting to engineering a declaration of victory that he did not earn based on the ballots cast, then the top priority must be bipartisan ECA reform that causes Republicans in Congress to abide by procedures that prevent repudiation of electoral votes that are based on the counting of popular votes.