Matthew Seligman: The Draft Electoral Count Modernization Act’s Chain-of-Custody Approach

The following is a guest post from Matthew Seligman:

Now that we’ve had a day or two to digest the draft Electoral Count Modernization Act released by Senators King, Klobuchar, and Durbin, I see better what it’s trying to do and why its attempt is so convoluted. Indeed, it is much, much more convoluted than it needs to be to accomplish the laudable goal that I think it’s aiming at: ensuring that the ultimate decision about which slate of electors is valid rests largely with courts rather than politicians, either in state government or in Congress.

The source of the draft ECMA’s byzantine text and structure is that it adopts what I think of as a chain-of-custody approach to ensuring that the valid slate of electors is counted. Here I’ll explain what I mean by that, and why I think the draft ECMA’s correct end goal would be better achieved through a simpler approach that adopts a mechanical rule of decision when Congress counts on January 6.

The draft ECMA’s approach to the problem I’ve discussed of a rogue governor sending a bogus slate of electors goes like this: If the governor’s certified slate conflicts with the state’s or (if necessary) a federal court’s final determination about which slate is valid, then the governor’s certification is legally void. The draft ECMA then directs a different state official, the state’s chief election officer, to send the right slate. And if that state official defies the state/court’s final determination, the ECMA authorizes a federal court itself to send the valid slate as a final backstop. (Let’s hold aside questions about the constitutionality of a federal court sending a certificate of electors on behalf of the state. But that alone might be reason enough to reject the chain-of-custody approach.)

Although the draft ECMA can and should declare that the rogue governor’s slate is legally void, it can’t effectively prevent a governor from mailing a piece of paper to Congress anyway. The ECMA can and should impose significant criminal penalties on a governor who does, but the promise of a presidential pardon by the beneficiary of the governor’s defiance takes the teeth out of that threat. As a result, the draft ECMA tries to jam a multiple slate scenario into a single slate scenario.

How so? Facing the possibility of multiple pieces of paper showing up in Congress on January 6, the draft ECMA takes a chain-of-custody approach. It says that the default valid slate is the one that arrived in Congress through the right pathway, sent by the right people each step of the way. The chain-of-custody passes from Section 5 to Section 6 to Section 11 to Section 15. Let’s unpack that:

  • Section 5 says that a state and (if necessary) a federal court get to decide which is the valid slate of electors.
  • Section 6 says that a governor/state official/if needed a federal court must send the slate that was deemed valid in Section 5 to Congress and to the electors named in that slate (among others).
  • Section 11 then says that the electors named in the slate submitted pursuant to Section 6 must send a certificate of their votes for President and Vice President to, among other places, Congress.

And finally Section 15 says that the presiding officer on January 6 opens “the sealed certificate of votes provided to the President of the Senate under section 11,” and then calls for objections.

That chain-of-custody approach thus sets the default slate to be counted on January 6 as the slate of electors that was submitted under Section 6, which it says must comply with the state/federal court’s decision way back in Section 5. (Under the draft ECMA’s Section 15, Congress can reject the slate that arrived through that chain-of-custody by both chambers voting by a 3/5ths margin to do so, but that chain-of-custody slate is the baseline.)

In principle, the chain-of-custody approach could work! It tries to tie Congress’s hands to accept a slate that was deemed valid by the state/a federal court in Section 5, and it tries to eliminate any state official’s ability to manipulate which slate is sent to Congress by deeming any conflicting piece of paper they send “legally void.”

But as we see in the draft ECMA, in execution the chain-of-custody approach gets very convoluted. And the reason is that it’s trying to ignore the other pieces of paper that show up in Congress on January 6, which requires creating a careful pathway from Section 5 to Section 15 that can’t be corrupted. 

There is a much simpler, more effective approach that satisfies the same ultimate aim in a much more straightforward way:

Instead of the chain-of-custody approach, the ECMA should adopt a substantive rule of decision on January 6 that ties Congress to counting the slate that was deemed valid the courts in Section 5, no matter how it ends up in Congress. 

To be concrete:

  • If Congress receives a single slate, Congress must count it if it’s the slate that was deemed valid by a federal court in Section 5. If the single slate isn’t so blessed, Congress can’t count it.
  • If Congress receives multiple slates, Congress must count the slate that was deemed valid by a federal court in Section 5. Period.

This is the approach I lay out, with some further complications and elaborations, in my paper Disputed Presidential Elections and the Collapse of Constitutional Norms. (For transparency, the complications and elaborations involve (1) objections to an elector or an electoral vote on a basis other than the validity of the elector’s appointment—for example, if an elector votes for a person younger than 35; and (2) a more elaborate framework for multiple slate scenarios that maybe should be simplified along these lines after all.)

This mechanical rule of decision for counting slates on January 6 avoids the need for complicated chain-of-custody machinery to control the paperwork on its way from the federal court to Congress. Tracking the chain-of-custody, after all, was just a means to the end of getting Congress to count the right slate. The mechanical rule of decision approach focuses instead on the only thing that ultimately matters: that Congress counts the slate that a court says is the valid one.

Post-script: Incidentally, that’s more-or-less the approach the existing ECA tries–but utterly fails–to implement. Why does it fail? Because Congress can and in 2020 many members did completely ignore the courts’ prior rulings. That’s why we need ways to enforce the rules in Congress. But that’s a post for another day.

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