This could well have large influence over ECA reform, not only for its substance but for who is behind the set of endorsements:
At the invitation of the leadership of The American Law Institute, a group whose members span a range of legal and political views came together to consider possible Electoral Count Act (ECA) reforms. Despite holding diverse legal, political, and ideological commitments, the group is united by the belief that Congress should reform the ECA before the 2024 presidential election. The group has agreed on several general principles that should guide ECA reform, as well as specific proposals as to what ECA reform should seek to accomplish. Read the group’s complete set of principles here, and read ALI’s press release here.
The members of the group, selected for their deep and varied experience in law and government, are:
Bob Bauer (NYU School of Law and former White House Counsel) (Co-Chair)
Elise C. Boddie (Rutgers Law School, and former litigation director of the NAACP Legal Defense and Educational Fund)
Mariano-Florentino Cuéllar (President of the Carnegie Endowment for International Peace, and formerly a Justice of the California Supreme Court)
Courtney Simmons Elwood (former General Counsel of the Central Intelligence Agency)
Jack Goldsmith (Harvard Law School and former Assistant Attorney General, Office of Legal Counsel) (Co-Chair)
Larry Kramer (President of the William and Flora Hewlett Foundation, and former Dean of Stanford Law School)
Don McGahn (Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University, and former White House Counsel)
Michael B. Mukasey (former United States District Court Judge and former United States Attorney General)
Saikrishna Prakash (University of Virginia School of Law)
David Strauss (University of Chicago Law School)
More detailed biographies are attached to the Statement of Principles for ECA Reform.
In an upcoming episode of the ALI’s Reasonably Speaking podcast, ALI President David F. Levi will be speaking with the group’s co-chairs Bob Bauer and Jack Goldsmith to further discuss their work. ALI Director Richard L. Revesz will also be devoting his April quarterly newsletter in The ALI Reporter to discussing the group’s important work.
ECA reform should be guided by these general considerations:
• Congress lacks the constitutional authority to address every issue that may arise in the presidential selection process.
• ECA reform should not itself become the basis of fresh uncertainties about the presidential selection process by raising new questions about whether Congress has acted within constitutional limits and inviting legal challenges on that basis. The aim of ECA reform should be, at a minimum, to address the core dangers and uncertainties presented by the current law without introducing
new problems of the same kind.
• ECA reform should clarify that Congress has an important but limited role in tallying electoral votes, consistent with the best understanding of the Twelfth Amendment and other relevant authorities.
• ECA reform should help check efforts by any State actor to disregard or override the outcome of an election conducted pursuant to State law in effect prior to Election Day, including State law governing the process for recounts, contests, and other legal challenges. (Currently every State has chosen to select presidential electors through the popular vote.) This is the most difficult element of reform because the question of Congress’ role in addressing abuses of this kind can raise novel and difficult constitutional questions and generate sharp political disagreement. ECA reform cannot by itself address every conceivable problem that may arise within a State, many of which will require legal and political responses at the State level.
• ECA reform should not affect the authority of the federal courts to address Due Process, Equal Protection, and other constitutionally based claims of unlawful State action in the administration, count, and certification of a State’s popular vote.
The General Principles are followed by specific recommendations for Congress, for the date of electoral college certification in the states, and for dealing with state action with the potential for multiple slates of electors.
Kudos to ALI for getting this group together and achieving this much consensus.