From Ned Foley, at LawFare:
The big fear from many liberals is that revising the Electoral Count Act (ECA), to prevent Congress from negating a Democratic presidential candidate’s valid victory in the way that Sen. Josh Hawley and Rep. Mo Brooks wanted to do last time, would do nothing to stop malevolent state actors—a governor or state legislature—from doing the same. Even worse, some fear that a revised ECA that requires Congress to accept whatever electoral votes a state sent would lock in the subversion of valid votes perpetrated in the state.
While motivated by the well-intended desire to protect democracy, this fear misunderstands the process by which the popular votes cast for president get translated into electoral votes, including the all-important role that the federal judiciary plays in ensuring that all popular votes be counted equally. Simply put, while all of us concerned for the future of democracy should worry about partisan state officials seeking to manipulate the counting of the state’s popular vote, we should calibrate our concern so that it is commensurate with the threat. In doing so, we must recognize that the federal judiciary, if it adheres to long-standing principles and precedents, will not permit any state official to proclaim an electoral outcome contrary to what a true count of the ballots would provide.
There are a lot of cases one could cite as evidence for this…
But the most well-known case that stands for the same proposition is the one that settled the 2000 presidential election: Bush v. Gore. Democrats despise Bush v. Gore because they think it robbed former Vice President Al Gore of a victory he would have had. That’s incorrect but for present purposes beside the point. What’s important now about Bush v. Gore is not the Supreme Court’s controversial 5-4 decision to deny the possibility of a resumed recount on remand to the Florida Supreme Court but instead the majority’s proposition for which there was no registered dissent: “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.” This constitutional principle means that in 2024, or any future presidential election, as long as the state legislature continues to use a popular vote as its chosen means for appointing the state’s electors, the counting of the popular vote must treat all cast ballots equally. In the words of Bush v. Gore itself: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
This fundamental constitutional principle applies to whomever state law designates as having power to participate in counting the state’s popular vote….
It is correct to be concerned that the attempt to nullify a valid popular-vote victory might occur in the states before the presidential election ever reaches Congress. But the remedy for potential state-based efforts at electoral nullification is the existing authority of federal courts under a series of constitutional precedents, including most especially Bush v. Gore. Democrats in Congress should not let their overlooking of this existing federal-court authority, or their instinctive displeasure with the result in Bush v. Gore specifically, impede the current effort at bipartisan ECA reform.
The need to constrain Congress itself from the temptation to veto unwanted electoral votes from the states is too great. The public—and Congress—can rely on the federal courts to protect from a subversion of a valid presidential election in the states. But only the self-restraint of Congress, in the form of a well-revised ECA, can protect against another attempt at electoral subversion in the special joint session of Congress where the winner of the next presidential term is officially declared.