“Election Subversion and Electoral Count Act Reform”

I’ve written this piece from NYU’s Just Security blog, on the relationship between preventing electoral subversion and ECA reform. A key line is this: “Proper reform of the ECA would also do much more to address the risk of electoral subversion – at least for presidential elections – than many on Twitter and elsewhere may realize.”

The piece is difficult to excerpt, but here are some of the opening passages:

We live in an era of electoral distrust. Nowhere is that distrust more acute than for presidential elections, in part because many voters have now come to perceive the stakes in presidential elections to be existential.

The Electoral Count Act (ECA), which governs the relationship between Congress and the states, needs to be clarified and reformed to reflect this era of distrust. …Some issues in ECA reform are easy. … Other issues are more challenging to solve, because pervasive distrust now surrounds nearly all institutions involved in administering elections. Widespread concerns now exist about whether the American people can trust either Congress or the relevant state authorities not to corrupt the process for partisan reasons.

Given this deep distrust of institutions, deciding how to allocate authority between Congress and the states in an updated ECA is no easy task. Nonetheless, I can offer a few general principles to guide those decisions. …[T]hese general principles organize analysis, in my view, along the right lines.

Here are a couple of substantive points from the piece:

Federal courts should be the critical institutional buffer between Congress and the states. To a large extent, they are so already. For one, the Equal Protection clause requires that ballots in a statewide election all be counted according to consistent principles and precludes arbitrary treatment of ballots. The Due Process clause, at least according to the lower federal courts, precludes all state officials from changing, in effect, state election law. But a reformed ECA should make clear that federal courts have jurisdiction to consider properly presented claims of federal law arising from the state’s proceedings for counting the popular vote. This should include the ability of the major-party candidates to go to federal court and challenge a state’s certification if they believe it was not made in compliance with federal law. These provisions should also make clear the role of federal courts in the event state officials fail to certify the vote for any candidate.

Working out the precise relationship between federal and state courts and the timing of federal court involvement is beyond the scope of this essay. But better to bring federal courts in before the vote-counting begins in Congress rather than try to do so during it.

Second, reflecting a similar principle: votes must be counted according to laws the state has enacted in advance of the election. The ECA should specify that neither the state legislature nor any other state official or body may change the rules for counting the ballots after votes are cast. This principle is already reflected in constitutional doctrine in the lower courts: in the guise of resolving election disputes, the Constitution precludes state actors effectively changing election law post hoc. I have written about these decisions banning the creation of “new law” by state courts or other state actors when they purport to be applying state election law. But this doctrine should also be expressly adopted in an updated ECA.

Third, state law always specifies which state actors have the authority to certify the vote. If we again confront the situation – which has not arisen since 1876 of different parts of a state government purporting to certify different slates — a revised ECA should make clear that Congress will count the votes from the authority that has been designated, in advance of the election, as the authority to certify the vote (as that certification has been modified, if necessary, by the federal judiciary)….

ECA reform is critical — as many members of both parties in Congress recognize — before we find ourselves in the midst of a presidential election crisis. These general principles should provide the general framework for that task and, as draft bills become public, I will address more specific details with these principles in mind.

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