Norm is concerned about how the new bipartisan bill handles the “failed election” provision of the current 3 U.S.C. 2. I think his concern is based on a significant misunderstanding of why the new bipartisan bill’s approach is so valuable. Current law would permit a state legislature to choose a new manner of appointing the state’s electors upon the predicate that the popular vote held on Election Day “failed” to yield an outcome. The danger is that this existing provision could be used by a state legislature to assert, because it does not like the result of the popular vote and thus alleges fraud after Election Day, that it is entitled to appoint the state’s electors directly and entirely repudiate the popular vote just held. This is obviously a serious defect in the existing law.
The new bipartisan bill, by contrast, would completely delete 3 U.S.C. 2, thereby entirely eliminating any capacity of a state legislature to choose a new manner of appointing the state’s electors after the popular vote has been held. The state legislature would have no authority whatsoever to appoint electors directly based on a pretext (or even a good faith belief) of a “failed” popular vote. The state legislature would be bound by its prior determination to use a popular vote as the basis for appointing the state’s electors for that specific year.
What the new bill does permit is for there to be an extension of the popular vote itself, beyond Election Day, if there have been “extraordinary and catastrophic events” that require the state to continue permitting the casting of ballots in the popular vote. The bill does this by providing that “election day”, for the purposes of conducting the popular vote used to appoint the state’s electors, “shall include the modified period of voting.” This language clearly does not permit a state legislature to attempt to appoint electors directly itself, which is an extremely important aspect of this change.
Moreover, there can only be an extension of the voting period, even for “extraordinary and catastrophic events” based on statutes that the state legislatures have “enacted prior to” Election Day. This explicit constraint prevents state legislatures after Election Day attempting to manipulate the period of balloting in the popular vote because of a partisan fear of losing the election. Moreover, even if we contemplate the possibility of a state legislature endeavoring in advance of Election Day to exploit the power to permit extensions of the balloting period for “extraordinary and catastrophic events,” such legislative abuse could not attempt to label “suspected voter fraud” as an “extraordinary” or “catastrophic” event, as Norm fears, in order to manipulate the process for partisan advantage. Suppose, for example, a state legislature identified in advance a cyberattack on the state’s electoral system as the kind of “extraordinary” or “catastrophic” event that permissibly could trigger an extension of balloting in the popular vote beyond Election Day. It still would take an election official to invoke this previously enacted provision; the legislature would not be permitted to change the rules afterwards. Moreover, any extension of voting opportunities in the election would need to comply with basic equal protection principles, enforceable by federal courts (which also would have authority to enforce the meaning of the federal law terms “extraordinary” and “catastrophic” contained in the new ECA reform bill if adopted).
Simply put, Norm’s concerns with this aspect of the bill are misplaced. Existing 3 U.S.C. 2 is far inferior, and much more dangerous, than what this bill would replace it with.
Furthermore, I think the comparison with existing law should be the baseline for evaluating the provisions of this new bill. For example, another of Norm’s concerns is that the bill permits both houses of Congress to reject a state’s submission of electoral votes. But this is true of the existing ECA as well, and yet the existing is ECA is also so much more problematic and dangerous on this point too. The current ECA would permit a rogue governor and a single chamber of Congress to act in combination to invalidate the electoral votes from a state that were based on an accurate count of the popular vote, as verified through administrative recounts and judicial review. By contrast, the new bipartisan bill would foreclose this kind of subversion of a valid election by the combination of a rogue governor and a single chamber of Congress. Instead, it would take both the Senate and the House to act in concert to repudiate a valid election, which is a much less likely scenario than (for example) a partisan governor acting in combination with a partisan House of Representatives.
Moreover, the bipartisan bill is written in a way–in sharp contrast to the existing ECA–to make it clear to the American public that the Senate and House would be acting lawlessly if they attempted to combine to nullify valid electoral votes from a state. It is abundantly clear from the text of the bipartisan bill that both the Senate and House are obligated to accept as “conclusive” electoral votes that reflect judicially reviewed tallies of a state’s popular vote. The Senate and House, acting together, are entitled to reject a state’s appointment of electors only when both chambers determine that a state’s appointment of electors is not entitled to this “conclusive” acceptance. As long as the courts have been involved in any disputation over the outcome of the popular vote in a state, it will not be possible for either chamber–let alone both–to say that there is not the kind of judicial resolution of the matter that would entitle the state’s submission to “conclusive” acceptance. In this respect, the bipartisan bill is vastly superior to the current ECA, which because of its convoluted and arcane language makes it much more difficult to perceive when a chamber of Congress is acting improperly in rejecting a state’s electoral votes.
Thus, in sum, it would be a shame if Norm’s concerns potentially endanger adoption of a bipartisan bill that would make the process of counting electoral votes in Congress much more secure, and at much less risk of election subversion that would negate a valid election, than the current law.
[This post has been slightly edited since its original version was posted.]