Analysis of the House Committee’s Staff Report on Proposals for Electoral Count Act Reform

               The Committee on House Administration, chaired by Rep. Zoe Lofgren (D-CA), has released its majority-staff analysis of current problems with the Electoral Count Act and a series of seven proposed reforms.  The report is a good start and endorses many of the positions I’ve taken, along with other election-law experts I’ve been working with on these issues.  It also rightly identifies an issue that has not received much attention yet but should in fact be addressed as part of ECA reform.

               Starting with the most significant issues, here are the recommendations and my views on them:

  1.  Congress should not have the power to second guess or reject the returns from a state when a state sends only a single slate of electors.  Congress’ power should be limited to the narrow, technical role of addressing only any rare problems in an elector’s eligibility to vote or how they cast their vote.  This is the position Ned Foley, Michael McConnell, Brad Smith, and I take in our recent Washington Post op-ed (to the extent there are concerns about possible manipulation of the process in the states, some of us are working on additional proposals to address that risk).
  2. Specify that the Dangerous “Failed to Make a Choice” Provision Applies Only in Narrow Circumstances, such as natural disasters.  This is a critical reform I’ve been advocating for a long time.
    1. As part of updating the process, the report also suggests pushing back the date the electors meet, to give more time for completion of the vote counting, court challenges, and certification to take place.  Ned and I endorsed that position last August.
  3. Eliminate the Safe Harbor and Add a Date By Which a Governor’s Duty to Certify Should be Completed, Along with the Right of Candidates to Seek Judicial Relief if the Governor Fails to Perform that Duty.  The safe harbor provision does no real work and is highly confusing.  This is consistent with proposals in our Washington Post op-ed, but goes beyond those to provide judicial relief as a backstop.  I’m inclined to think this is a good proposal.
  4. Clarify the Denominator For Determining Who has Won a Majority of the Electoral Votes. This is the issue that has received little attention so far.  The committee is right to highlight it and to insist that Congress should do what it can to clarify the issue. 

If for some legitimate reason, the vote of an elector or electors cannot be included in the count, how does that affect the denominator against which “majority” is determined?  Congress should provide an answer before we get to any moment in which that might occur.  The Constitution might play a role here, but to the extent there is any ambiguity in how to apply the relevant constitutional provisions in these circumstances, a statutory commitment would have two benefits.  It would guide future Congresses and, to the extent the courts were to play any role in addressing the issue, it would inform judicial analysis.  The constitutional text refers to the “whole number of electors appointed,” and the report concludes that if an elector has not been validly appointed, then that elector should not be included in the denominator.

  • Clarify that federal law permits states to process absentee ballots before or after Election Day.  I don’t think federal law has been an obstacle to this, and most states do so already.  But the failure of states such as Pennsylvania, Michigan, and Wisconsin to permit their officials to process absentee ballots as they are received, or at least several days before Election Day for those received by then, was inevitably going to lead to delays on when we would know who had won those states.  In advance of the 2020 election, I argued that late-counting of absentees could trigger conspiracy stories about the counting, and that states should permit processing of these absentees well in advance of Election Day.  I don’t think federal law ever stood in the way of this, but it’s fine to clarify that.   
  • Clarify the VP’s Role and Raise the Threshold for Objections.  These two proposals are going to be included in any ECA reform discussion.  Because I’ve folded these together, that brings us to the seven reform proposals in the report.

The Committee on House Administration’s majority-staff report is a good starting point for further ECA reform discussion.

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