The bipartisan group of Senators, led by Senators Collins and Manchin, have released a draft bill for a revised Electoral Count Act (ECA). We want to state here why we, a bipartisan group of law professors, support it and urge Congress to enact it this summer.
Here are the main features of the draft, which are a vast improvement on the existing Act from 1887. These features appropriately respond to the need to update the Act to protect the integrity of future presidential elections.
First, and most importantly, in its revisions to the current provisions of U.S. Code, the draft bill reflects the philosophy that disputes over which presidential candidate won the popular vote in a state should be settled according to that state’s law, adopted in advance of the popular vote, subject, as required by the Constitution, to the supremacy of applicable federal law. As revised by the draft bill, 3 U.S.C. § 1 would now read: “The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” The italicized language is new, and may not be a lot of words, but it embraces the key point that the appointment of electors must be pursuant to the rule of law, and not the partisan whim of state officials disgruntled with the outcome of the popular vote.
This blog post is not the place to indicate all the subsequent sections of the bill that reinforce this basic point. Suffice it to say here that this key principle would be suffused throughout the revised ECA if this draft bill is adopted.
Second, and relatedly, the draft bill would delete the existing so-called “failed election” provision in 3 U.S.C. § 2, which dangerously empowers state legislatures to choose a new method of appointing their state’s electors if the election has “failed”–a term undefined in current law–in that state. Instead, the draft bill would permit states to extend the period of holding the popular vote itself in very limited circumstances: “as necessitated by extraordinary and catastrophic events as provided under laws of the State enacted prior to such day.” But state legislatures have no power whatsoever for changing the rules for appointing their electors after the congressionally designated Election Day in November. Given the concern about the possibility of state legislatures wanting to repudiate their state’s popular vote after it has occurred, this revision is an especially salutary change in the relevant federal law.
Third, the bill eliminates uncertainty about the results of a state’s election or the risk of competing slates of presidential electors. Under the bill, there is only one official outcome of a presidential election in each state, and the courts have a role in ensuring that only one certificate of election is sent to Congress. The bill clarifies who has the authority to certify a slate of electors for a state, and a certification according to that process is conclusive when presented to Congress. If a state delays or refuses to certify the results of a presidential election, the bill allows for a speedy federal court challenge. State and federal courts are already available to ensure that the certification of the vote count complies with state and federal law, and Congress agrees to bind itself to respect any such judicial determination when counting votes. The key part of the draft bill on this point is its revision of 3 U.S.C.§ 5, which would make unmistakably clear the obligation of Congress to accept as “conclusive” the certification of electors the judiciary, if involved in resolving disputes, requires.
Fourth, the bill repairs several procedural weaknesses in how the existing Electoral Count Act structures the joint session of Congress that occurs on January 6, two weeks before Inauguration Day. It clarifies that the President of the Senate (usually, the Vice President) has a ministerial role and no unilateral power to reject election results. The bill also raises the threshold for objecting to counting electoral votes. One-fifth of the members of each chamber must sign an objection to counting electoral votes, up from the present rule that just one member of each chamber can object. This reduces the likelihood of a small number of Representatives and Senators delaying the count or interfering in results. It also specifies and limits the kind of objections that members of Congress can raise, most especially to incorporate—as spelled out in 3 U.S.C § 5—that Congress is not permitted to second-guess the results of elections after states have certified the results.
If this bill is enacted and future Congresses are faithful to its philosophy when they meet in joint session to count electoral votes as required by the Twelfth Amendment, there should no longer be a threat of congressional efforts to negate the result of a state’s popular vote that has been determined in accordance with the rule of law. Inevitably, in a bill of this size and scope, there are particular provisions that we might draft a bit differently. But the essential elements of this bill are what we believe a well-revised Electoral Count Act should accomplish.
In sum, the bipartisan bill would be a major improvement over the antiquated Electoral Count Act. ECA reform has to be truly bipartisan and not merely to the barest extent needed to overcome a potential Senate filibuster. At the end of the day, the ECA is self-enforcing; the Act works only as long as Congress is willing to bind itself to the Act’s terms. That makes buy-in from both sides of the aisle essential. The fact that the large group of bipartisan Senators has gotten this far is a promising sign that Congress might well solidify the legal framework for future presidential elections.