Initial thoughts on the discussion draft of the King-Klobuchar-Durbin “Electoral Count Modernization Act”

After all the news about proposed Electoral Count Act reform, we have the first “discussion draft” proposal out the door: Senators Angus King, Amy Klobuchar, and Dick Durbin have proposed the “Electoral Count Modernizaton Act.” There’s a lot to unpack in this bill.

Defining Election Day. At the outset, it updates 3 U.S.C. §§ 1 & 2, defining Election Day. (Strictly speaking, this isn’t a part of the old Electoral Count Act, but a law enacted in 1845 setting a uniform time for choosing electors.)

It clarifies that ballots can be submitted before election day, ballots can be cast by people waiting in line when the polls close on election day, ballots can be cured after election day, & such other counting rules established before election day. It’s not controversial, I suppose, but (1) it leaves open the possibility of cases like Republican Party of Boockvar v. Pennsylvania, where there was some uncertainty about how to determine whether ballots were cast “on or before” election day, and (2) expressly authorizes states to continue to count ballots received after election day, which some states do, but some in Congress, I think, disapprove of.

So it may well codify a rule that has a federalism flavor to it, if everyone can get on board.

I entirely understand the reasoning here–some argued (quite wrongly, I think) that absentee ballots, vote by mail ballots, and so on are impermissible under federal law. This clarifies, I think, the worst of those excesses. But it might invite some scrutiny about whether Congress ought to providing more clarity. Too much clarity, however, starts to feel less like congressional regulation of the “time” of receiving ballots and more about the “manner” of holding elections. (It’s also worth noting, the rules for election day for members of Congress are codified elsewhere, which creates a bit of asymmetry.)

Importantly, it adds “provided such rules are prescribed prior to election day.” This is a robust reading of Congress’s power to “determine the time of choosing the electors,” as the Constitution authorizes, but prohibits post hoc changes to rules.

Election Emergencies and a Federal Cause of Action (I). Section 2 of the ECMA proposes limited criteria for “extending popular elections.” First, election day can only be extended only if (1) it’s beyond a reasonable doubt, that (2) a catastrophic event has prevented a potentially outcome-determinative number of voters or ballots (3) for the challenging presidential candidate.

It’s tricky to include a very high burden (“beyond a reasonable doubt”) with the caveat of “potentially” outcome-determinative. Understandable! It’s meant to capture the uncertainty of who the, say, 10,000 ballots were cast for (that’s the potential).

But it also ensures not any voter or even any candidate can challenge it–only if *that candidate* can show it, which further narrows the field.

How do we determine such catastrophes (defined elsewhere in the statute)? It creates Federal Cause of Action I to extend the time of choosing electors. (This is the first of four new federal causes of action in the ECMA.) Venue lies in the district court where the state capital is located. Parties must file by the day after election day. No other person may intervene. The time for voting extends throughout the state, for the “shortest duration necessary in light of the catastrophic event” and no longer than 14 days. And there’s an express sanctions provision for frivolous claims, along with criminal penalties for those who attempt to disrupt the casting, of votes.

This is designed to repair the existing “failed to make a choice” mechanism in federal law, which has not been useful in recent years except to increase uncertainty.

My initial instinct is, I think this is a pretty narrow provision, & one consistent with Congress’s power to make laws necessary & proper to set the time of choosing electors, even with the opportunity for a federal court to determine that election day should be extended in those rare circumstances.

Alternative Electors. This is a more subtle change. The new Section 4 would provide that alternative electors must now be “identified by election day” to fill vacancies in Electoral College. Some states expressly create alternative electors as a backup. But in the past, states might also empower remaining electors when they convened to select someone to fill any vacancies.

While this is definitely a better rule as a matter of policy, I’d have to think about the scope of congressional power to dictate this. While this provision is ostensibly is a “time” rule, the requirement to provide alternative electors feels more like a “manner” rule, one left to the states to decide the manner of appointing electors. But, it’s possible to say that all electors, including all alternates, need to be selected on Election Day, and perhaps that works.

Final Determinations and a Federal Cause of Action (II & III). Section 5 starts to get into the actual Electoral Count Act. There will be one final determination to be resolved by December 20 (slightly longer than existing statutory deadlines). A “final determination” is made under state law, except as modified by state recounts or federal judgments.

But where it starts to get interesting is another pair of federal judicial review mechanisms. One is more straightforward. The other is… less.

The first, Federal Cause of Action II, is the more straightforward mechanism. Section 5(c)(4) would allow a federal court to “ensure that the transmissions of certifications of identification of electors” are submitted to Congress. Candidates could bring a challenge up until December 23.

This is not a very merry Christmas gift…. Electors would now meet December 29. This is an awfully compressed window if the first challenge could be brought December 23, with potentially two rounds of appeals, before December 29.

I also have some very complicated thoughts (for a future blog post…) on the ability of a federal court to step in to compel transmission of certificates from the state election officials. I think there are tricky remedial and jurisdictional issues here. But if the effort is to compel the executive in the state to send certifications of election reflecting the final determination of the selection in that state over to Congress… it’s plausible to argue this is consistent with Congress’s Twelfth Amendment powers (indeed, consistent with expectations it placed upon executives in 1792).

The second, Federal Cause of Action III, is, in my judgment, the biggest weakness of the bill and potentially a mess.

In the “section by section” explainer, it says it “establishes” a “distinct” cause of action that “allows an individual to file a lawsuit to challenge any aspect of a State’s final determination (of the appointment of Electors) within three days of the circumstances giving rise to the cause of action (i.e., requiring any legal challenges relating to the outcome of the election to be filed within three days of when the person knew or should have known of the potentially problematic occurrence).” Any individual? May challenge any aspect?

Section 5(d) says that “a person” can bring an action “to enforce the requirements of this section,” says 5(d)(1)(A). Is that just this section? Does this incorporate application of state law in the counting of votes? And 5(d)(2)(A) says that a litigant may “challeng[e] any aspect of a final determination.” And later, of a “circumstance giving rises to the Federal cause of action.” Is this a new federal cause of action? A roving right to patrol what states are doing when counting and determining votes? Not limited to presidential candidates, as done earlier in the statute? I’m not sure what this section does, and I have a hard time figuring out how it survives Article III without some additional contours. In short, the federal courts certain can enforce federal rights, it becomes much harder to think about how this provision fits in the rest of the scheme.

Sending Certificates and a Federal Cause of Action (IV). The otherwise-sleepy Section 6 gets an upgrade. Governors send certificates of election to Congress. If they won’t, then chief election officials will. And if they won’t, we’re up to our fourth new federal cause of action, where litigants can seek relief, including the federal courts sending the certificates. (One caveat: it purports to allow venue in the federal district court of the state capital or in the District of the District of Columbia, but I don’t know if there’s personal jurisdiction in D.D.C. This was raised in some of the wonkier litigation last year, but those D.C. cases arose after a governor or someone sent a certificate to Congress, not before, or failing to do so.)

Abolishing Secret Ballots for Electors. Section 9 requires presidential electors to identify which president and vice president they voted for. No more secret ballots. I’ve argued that this is necessarily true to enforce the Twelfth Amendment to determine whether an elector vote for a president and a vice president from the elector’s state (see Part IV of my amicus brief in Chiafalo here). But, can Congress force states to do this? I’m not sure.

New Recipients of Certificates. In a sign of bicameral distrust, the Speaker of the House gets certificates from electors as well as the President of the Senate. And no longer do certificates go to the local district court judge, but to the Chief Justice of the Supreme Court (sic).

The Speaker makes sense, as both houses are the tellers. But it also suggests that Congress wants more say inside Congress, rather than just relying on the Vice President as President of the Senate.

As to the Chief Justice, the old rule was essentially a local backup if things got lost in transmission. The new rule seems to send evidence to the United States Supreme Court from around the country, as if anticipation that some dispute might end up there….

Restricting the Role of the Vice President and the Two Envelope Solution. Section 15 has a lot of updates. The first move is to strip the vice president of the role of presiding officer, leaving it to the president pro tempore of the Senate, unless that person is a presidential or vice presidential candidate.

Some super interesting questions here. From Article I, “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” And from the Twelfth Amendment, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” Consistent with that role? My sense, I think, is yes, but it certainly bucks a lot of historical practice.

It goes on to expressly clarify that neither the President of the Senate nor any presiding officer can resolve disputes. This is the “clarifying” language that everyone already thinks is true under the existing Electoral Count Act (except those who reject the constitutionality of the Electoral Count Act).

Next up is a laborious process. The states have submitted now two sets of envelopes, an inner envelope & and outer envelope, so that the President of the Senate still preserves her Twelfth Amendment role of opening the certificates of electoral votes, but nothing else. And now, the Secretary of the Senate enters the scene. She opens the first envelope & makes a “preliminary determination” about the ascertainment of electors (i.e., who won the popular vote and gets the certificate of election). The president pro tempore calls for objections. (See below on the “first layer” of objections.) Assuming none, then the Secretary of the Senate hands the inner envelope to the President of the Senate, who opens the inner envelope, then hands to the tellers to read aloud and count, and the presiding officer calls for objections. (See below on the “second layer” of objections.)

This all strikes me as quite theatrical and complicated, even if unoffensive. And inviting the Secretary of the Senate into this role strikes me as curious. But, the objections are where everyone really cares.

The Threshold for Objections. Written objections now require not less than one-third of Senators & one-third of member of the House to sign an objection on specific grounds. The threshold is higher, and the grounds for objection are expressly enumerated.

Sustaining an objection requires a three-fifths vote in each house. I’m a bit skeptical of this mechanism. Strictly speaking, a majority of both chambers could do whatever it wants (see, e.g., the filibuster). But maybe this put some downward pressure to prevent malfeasance.

Two Layers of Objections. There are now two distinct layers of objections. The first layer includes objections, Section 15(c)(1), “to the validity of the certificate of identification of electors of such State.” There are two grounds: the elector in ineligible, or the certificate is “not the valid certificate.”

So Congress gets to evaluate validity of the certificate. If not furnished under Section 6 (see, briefly, above), the certificate is invalid. If one certificate, it’s valid. If more than one certificate, & one comes from a federal court, valid (subject to objection). If more than one certificate, & not one from a federal court, but “reflects (?) the State’s final determination,” valid (subject to objection). If more than one certificate, & not from a federal court nor reflects State’s final determination, not valid.

Now, 15(b)(2) says “no objection shall be in order” unless it meets (c)(1), but it’s not clear who determines whether objections are in order (President pro tempore?) except reverting to the chambers again. The current Electoral Count Act doesn’t try to sort out valid from invalid objections. You make them, & the chambers just sort them out. I understand the desire to constrain, but quis custodiet ipsos custodes….

(There’s also a pretty remarkable move to allow “any Senator or Representative” to “offer an alternative submission” of electors under Section 4. I’d have to think about what gap this purports to fill.)

The second layer of objections includes three enumerated objections: the president and vice president are from the same state as the elector; the candidate is ineligible; or the electors voted on the wrong day. That’s a bit narrower than some of the existing precedents I’ve covered, but it also expressly contemplates potentially challenges to eligibility (which I support, but I know is contested elsewhere). Andy Craig over at CATO adds that we should think about challenges to eligibility differently since enactment of the Twentieth Amendment, and on that I agree, too.

Tallying the Votes. At the end of all of this is the tally.Section 15(b)(6)(B) expressly excludes votes from the denominator if you threw out a state’s electors as “invalid.” (I also think this is the best interpretation of law as I’ve set out.)

Miscellaneous Provisions. The proposed bill also reduces any opportunity for recesses, and it adds some other clarifications, like by referring to “chief State election official” as defined in the National Voter Registration Act. But get down to Section 3 of the bill… it modifies the Presidential Transition Act of 1963, too.

Final Thoughts. On the whole, it hits at some of the most important components of reform. I think there’s some added complexity (including the Two Envelope Solution) that could be streamlined. And I am most skeptical of Federal Cause of Action III. It remains vague to me, after rereading several times. There are a few other areas where I’d want to think more about how they play out. But it’s great to have some actual text to discuss.

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