The Committee on House Administration’s majority staff (on behalf of Chair Zoe Lofgren) released a significant document a couple of weeks ago addressing Electoral Count Act reform.

This document has been stunningly underexamined in media scrutiny (in my humble opinion), which seems much more interested in what some members of Congress may or may not have discussed in a recent meeting, rather than addressing real, substantive proposals and their legal basis.

But I want to draw attention one narrow part of this proposal. Can Congress empower the federal courts to force a state executive to send election results to Congress? And if you want a deep dive (read: far too long post!) on congressional power to establish federal jurisdiction over Electoral Count Act issues, continue reading….

Normally, we simply rely on the state process to get election results to Congress, which looks something like this. There’s an election. There’s a canvass to total up the votes. Sometimes, there’s a recount, which can amend the canvass. Sometimes, there’s an audit, which can then be used to amend the canvass. Sometimes, there’s a contest filed in state court. At the end of this is a total number of votes. A canvassing board or some election authority certifies the results. That goes on to the executive, who sends to certificates of election to the presidential electors who won their offices, and to Congress to identify the results in the state, including the winners. (After that, the electors meet, vote, and send their own certificates to Congress.)

This process might break down (but it really hasn’t since 1876). One of the most daunting aspects of more ambitious Electoral Count Act reform is securing finality from the states. Ideally, Congress gets one certificate of ascertainment of the winner of the state’s popular votes, followed by one set of returns from the electors of the state. (That’s what’s happened in every election since 1876 except for Hawaii’s electors in 1960, with a few caveats of pieces of paper no one in Congress ever seriously considered as a second set.)

There are several finality issues to consider, but I’ll mention three. First, how can we ensure that a state finishes its election certification (canvass, recount, and contest) on time? Second, how can we ensure that there’s just one result and not competing results? Third, how can we identify the “true” final result for Congress to count?

The current Electoral Count Act offers answers to these questions. On the first, there is a “safe harbor” deadline, and Congress says that determinations of results “shall be conclusive” if resolution occurs at least six days before electors meet. On the second and third, it presumes that the certificate with the state executive’s signature is the presumptively appropriate certificate to count.

These haven’t been very helpful.

The “safe harbor” deadline has been blown past repeatedly in many states in recent years as election challenges persist into January. Congress in recent elections cared little for whether states met the safe harbor deadline and rarely publicly discussed it. Some wonder whether executives will actually sign the certificate of election in the near future, or whether Congress would actually handle competing certificates appropriately (as the Electoral Count Act is perhaps not as clear as I’ve made it out to be in this post).

Securing timely and singular election certificates

One solution, then, is empower a federal court to direct the executive to transmit a certificate identifying who won the state’s popular vote. In the “discussion draft” Electoral Count Modernization Act, I identify “Federal Cause of Action II” as such a mechanism. But this is easier said than done.

It is worth noting that federal court jurisdiction in presidential elections is not easy–despite the fact that one might think, well, it’s a presidential election, of course federal courts have something to say. Jurisdiction must address how federal courts get involved in a process the Constitution largely reserves to the states and their legislatures (to direct the manner of appointing presidential electors). It must determine how federal courts could direct a state executive to do something. It must account for how federal courts can be involved in what is reserved to Congress, the counting of electoral votes.

On top of this, a party must have a “case” or “controversy” to bring to the courts, which means the courts can only intervene after some problem has arisen. Federal courts cannot order state officials to follow state law under the Pennhurst doctrine, so the hook would need to be some federal obligations. Federal courts might not revisit an issue already addressed by a state court, including issues of preclusion and, perhaps, the Rooker-Feldman doctrine. Federal courts cannot tread on roles reserved to Congress.

That’s not to say federal courts can’t or haven’t been involved in the past. Think, of course, of Bush v. Gore. It’s only instead to say that for this particular mechanism of federal judicial intervention, one needs to puzzle through how the federal courts get involved (assuming that it’s better than the existing solutions in state courts).

The Committee Staff Report offers several reforms. Some are familiar: raising the threshold for objections in Congress, clarifying the limited role of the Vice President, and so on.

Then there’s this proposal: “Reform 3:  Ensure that Congress Receives Timely, Accurate Electoral Appointments.” It includes two prongs: “Eliminate the Safe Harbor” and “Ensure that Congress Receives Timely, Accurate Electoral Appointments.” This addresses all three finality issues I mentioned: a fixed time to send in one slate of electors with no disputes, because, well, there’s only one slate, and it’s arrived on time.

As the report says, “A revised ECA could simply add a date by which the governor’s duty must be performed and authorize candidates to seek injunctive relief if the governor fails to perform the duty. Under this approach, Congress would receive one, accurate certificate of appointment from each state, and would thus have no need to consider electoral appointments or votes submitted by any other person or body (i.e., competing or ‘alternate’ electoral slates).” (Note how much simpler and elegant this solution is than the draft Electoral Count Modernization Act.)

Perhaps, however, easier said than done. Which brings me to Footnote 153 of the report.

Bases of federal jurisdiction to compel timely and singular election certificates

Footnote 153 identifies seven separate potential bases for the exercise of congressional power to ensure that there is one certificate of appointment from the state such that a federal court could ensure Congress received one certificate. In other words, the Committee Staff Report recognizes that this is one of the thorniest legal issues to solve. How can we ensure that a federal court is empowered to order a state governor to do something?

They are, roughly, in descending order of persuasiveness, in my view, with a caveat. Let me quote and format the first part of this footnote, with one small elision I’ll return to.

• “Congress is tasked with certifying the election results, see U.S. Const. amend. XII, which empowers Congress to ensure that it possesses results to count to the extent such results exist.”
• “The Constitution grants Congress broad authority over the timing of presidential elections, see U.S. Const. art. II, § 1, cl. 4, which empowers Congress to set a deadline by which it must receive a state’s electoral appointments.”
• “Congress may also regulate the manner in which states’ ‘Acts, Records and Proceedings shall be proved,’ U.S. Const. art. IV, § 1, which empowers Congress to require each state’s governor to submit certificates of appointment in a particular format. . . .”
• ” The Constitution also tasks Congress with protecting the fundamental right to vote, see U.S. Const. amend. XIV, Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966),”
• [cont’d] “as well as protecting voters’ due process rights, see, e.g., Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978), each of which empowers Congress to ensure that the electoral certificate it receives from each state accurately reflects the election results under the duly enacted laws of that state.”
• “The Necessary and Proper Clause bolsters each of these powers. U.S. Const., Art. I, § 8, cl. 18.”
• “In addition to these enumerated powers, Congress possesses an inherent ‘power of self-protection’ to ‘preserve the purity’ of presidential elections. Burroughs v. United States, 290 U.S. 534, 544-45 (1934).”

Whew.

The footnote goes on to describe (1) how courts have often deferred to congressional judgments, (2) how this power does not trammel state’s power to direct the “manner” of appointing electors, and (3) how congressional authority might be circumscribed in other ways.

The elision is this: “Indeed, Congress has required governors to undertake some version of that duty since 1792.” (It also cites a statement of a member of Congress in 1886.) And this, to me, is perhaps one of the most intriguing elements to consider federal court jurisdiction.

Consider what Congress required in 1792: “That the executive authority of each state shall cause three lists of the names of the electors of such state to be made and certified and to be delivered to the electors on or before the said first Wednesday in December, and the said electors shall annex one of the said lists to each of the lists of their votes.”

As I’ve written about before, the Twelfth Amendment was adopted with an existing backdrop of congressional practices of how it went about “count[ing]” electoral votes. And it seems to me some intriguing basis to assert jurisdiction on this basis (or the Article IV basis, which, frankly, I’ve never really thought about) as a means to compel an executive to send a certificate identifying the winning electors to Congress in a timely fashion. If Congress need something to count, why not ensure that states send the results of their elections to Congress?

So, I think there’s a plausible basis to articulate federal jurisdiction in this narrow band (i.e., transmitting a certificate of the state’s election results from a state to Congress, if that isn’t done).

There are some things to consider that may reduce friction or complexities. One might be a rule like the one the Committee Staff Report suggests, but I would likely add some caveats. For instance, perhaps a rule would require that state remedies have been exhausted, or at least exhausted up until the deadline for the executive to send a certificate to Congress. This ensures no dueling jurisdiction between federal and state courts. It allows ordinary mandamus in the state cases. It would avoid abstention issues. It would squarely turn on compliance with federal law rather than revisiting state law issues and invite Pennhurst problems. It provides a federal backstop as a last resort. But it certainly could delay matters–and it might arise very late in the election process, which can be a challenge to get through judicial review, much less appeals. And it doesn’t necessarily address, say, potential preclusion problems if related issues are previously litigated in state court. It’s not clear what effect, if any, a judgment might have on Congress, which may run into some Article III problems.

In short, there’s no magical fix. The devil is in the details of even this proposal. Timing of litigation, opportunities for appeal, and securing congressional buy-in remain thorny topics.

I’m not inherently opposed to any mechanism like this, and I think with enough puzzling most (at the very least) of these problems can be ironed out. But I simply note that the draft Report here has a very deep dive into some potential bases for jurisdiction on a narrow topic, and I think it’s worthy of some serious consideration as Congress moves forward on this issue in the weeks ahead.