I was pleased to join a statement with Professors Foley, McConnell, Pildes, and Smith in support of the Electoral Count Reform Act. That statement includes a nice summary of the highlights of the legislation. I wanted to drill down on one feature of the Act (and there will be opportunity to drill down on many more elements!): the judicial review mechanism.

One prominent complexity of a previous “discussion draft” of ECA reform was considering how judicial review fit into the picture. Judicial review of election disputes looks very different in the 21st century than the 19th century, and the problems that might arise look different each election cycle. Florida 2000, Ohio 2004, myriad 2020 lawsuits, to name a few, each took different directions. So what would judicial review look like? I had a pretty good grasp on 3/4 of the “discussion draft’s” judicial mechanisms and blogged through it, and I thought I’d do the same with what’s happening in this bill, too.

There’s been some discussion about this already. There’s been some thoughts (across the spectrum!) from Marc Elias, Quin Hillyer at the Washington Examiner, Norm Eisen, and the Wall Street Journal editorial board expressing varying questions about the judicial review piece in the bill. Matthew Seligman offers his own thoughts in support.

I’ll take a longer look here, about what it does and doesn’t do–warning, some federal courts meandering ahead….

I.

[A.] Starting from the end of the process, the President of the Senate opens certificates of votes of electors appointed pursuant to a certificate of ascertainment of appointment of electors, and only those certificates are counted. This means, there’s one certificate, and no opportunity to have “competing” certificates. It shall accept it as “conclusive.”

[B.] Taking it back a step, where does the certificate of ascertainment of appointment of electors come from? The executive of each state issues it at least 6 days before the electors meet. (Many issue them earlier, of course.) Any such certificate “shall be treated as conclusive,” and any certificate “as required to be revised by any subsequent State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates.”

There is a recognition, then, that Congress should have just one certificate, and the rules have to set up a prioritization for certificates in the event there’s some dispute. Here, any certificate revised by judicial relief ahead of when the electors meet gets priority. While Congress is instructed to accept a certificate (i.e., it is “conclusive”), then, it is not simply doing so based on what a state does; it is deferring to judicial determinations, too.

Let’s draw in the text of the new 5(a)(1):

Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day.

This (1) explains that the executive has an obligation to send results “under and in pursuance of the laws of such State” and (2) qualifies that the rules have to be in place before Election Day. (Relatedly, Section 6 of the ECA today already has the language of “under and in pursuance of the laws of such state.” This is not novel language but what has long been the instructions on the executive.) This language also ensures that Congress is compelled to treat as conclusive executive certificates that follow state law, an additional layer of assurance to Congress.

[C.] Plenty of litigation can and does happen after Election Day but before the executive is required to issue a certificate, recounts and contests among them. But let’s again fixate on that date 6 days before the electors meet. What happens if the executive fails to issue a certificate, or sends the wrong certificate? Here’s where the expedited provisions and venue kick in.

Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b), shall be subject to the following rules . . . .

That is, there are plenty of things that could happen well before the issuance of a certificate, under state or federal proceedings, in the recount or the canvass. Only if controversies arise, [1] in federal court, [2] as filed by an aggrieved candidate, in a [3] narrow band of disputes (“with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b)”), would such challenges face a new expedited process: a three-judge panel with direct appeal to the Supreme Court.

Again, to the extent the goal is to strengthen the link in the chain of Congress’s accepting one, genuine certificate of election to be “conclusive” in the counting of votes, this mechanism increases Congress’s confidence by providing what might be described as a “federal judicial backstop.” In the event some problem arises in the last link in the chain, the executive’s certificate (or failure to issue) is subject to this expedited federal review.

[D.] Let me offer a very practical example from the 1960 election in Hawaii. (Let’s set aside the very real timing issue, which this revision would, quite helpfully, end, by compelling recounts to wrap up earlier.)

The original certificate of ascertainment signed by the governor in 1960 determined that Richard Nixon’s electors had won. On January 3, 1961, a state court ascertained that John F. Kennedy had won the recount.

For a 24-hour period, it was unclear what should happen next. There was a state court determination. So what? Would the governor sign a new certificate of ascertainment? If he didn’t, what should Congress do? (I have some research on this topic in the future, stay tuned….)

One could promptly seek mandamus in state court, of course. But if one wanted to file in federal court to say there was a Due Process, Equal Protection, whatever federal claim one might have, issue that arose, here would be an expedited procedure to resolve that. (The dispute was moot, because the governor did sign a new certificate, pursuant to subsequent judicial relief.)

II.

Now, there are still some questions that have arisen (I linked to several of the critiques so far), which I’ll try to summarize some of them to answer questions (and in some places quote).

Does this exclude state courts from the process? No. The rule of construction from Tafflin v. Levitt still applies. States are not expressly or implied excluded, and “State . . . judicial relief” is expressly anticipated. (And federal statutes, unsurprisingly, typically do not say much about how state courts go about their jobs.)

It is unclear what “as required to be revised by any subsequent State or federal judicial relief” means. Required by whom? Subsequent to what? Revised how? (I quote these questions from Elias’s post.) Each is found within the text of this subsection of the statute. Required, by a state or federal court. Subsequent, to the issuance of a certificate of ascertainment. Revised, by means of state or federal judicial relief (e.g., an injunction subject to contempt).

Does this foreclose judicial challenges to election results until after the governor signs his or her certification six days before the Electoral College meets? No. First, the statute does not alter or strip any jurisdiction in existing cases or causes of action.

Second, note the limitation within the text of proposed amended 5(d)(1) (here I’ll requote it):

Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b), shall be subject to the following rules . . . .

There are only two types of actions subject to this procedure: the “issuance of the certification” and the “transmission of such certification.” It does not alter any cases or claims about the canvass, recount, audit, contest, or the like. It is designedly narrow.

Third, and relatedly, it can only arise, timing-wise, (a) once the executive has issued a certificate, or (b) if, by six days before the electors are supposed to meet, the executive has failed to issue a certificate [or failed to transmit expeditiously to the electors by the time they meet].

Is six days enough time? First, in many states, the executive issues a certificate well before six days before the electors meet (states set such deadlines). If there’s a faulty certificate issued (e.g., the state procedures by the end of the canvass reveal X won but the certificate is issued quickly for Y), there is more time.

Second, if the executive is slow to issue a certificate under existing state law, relief can be sought in state court or in federal court, as typical. It’s only once that governor has failed to do by six days before the electors meet that this special expedited procedure takes place.

Third, by the time we’re at this stage, all the rest of the process–canvass, recount, audit, contest–should have played out in the state and federal courts. (One can ask whether 36-ish days is enough time from Election Day to this deadline, but these are the perils of the Twentieth Amendment, for one, and recent experience–Georgia conducted both a statewide recount and a statewide audit in plenty of time–suggest it’s not a problem for more meritorious challenges.) By the time there’s a dispute arising in the narrow circumstances of the issuance of the certificate, it is principally a ministerial matter.

Would this mean federal judges of a particular political party are more likely to hear the case in such matters? First, there’s pretty strong partisan parity on the federal bench. Second, the mechanism of the chief judge of a circuit appointing two members to a three-judge panel has been in place for decades, with little obvious partisan fault lines. There’s a Republican-appointed chief judge in the circuit embracing Georgia and Florida, and a Democratic-appointed one in the circuit embracing Nevada and Arizona. It’s not clear that in redistricting disputes (including a recent three-judge panel in Alabama, among others), which are also hotly partisan and where the three-judge panel has been a mainstay, there’s been much if any partisan valence. And any such case is always ultimately subject to the Supreme Court, anyway–it’s just a question of the means by which it gets there.

Are there no standards for a federal court to review a “conclusive” election certificate? First, note that “conclusive” is binding on Congress (section 5(c)(1) says that it’s conclusive “for purposes of Section 15”), not on courts. The opportunity to “revise,” then, is speaking of another matter. Second, determinations of federal law–whether it’s Due Process, Equal Protection, or other federal standards–are treated as “conclusive” in Congress when determined by federal courts (see section 5(c)(2)). So, a federal action filed in this federal tribunal (Due Process or otherwise) gets ordinary federal court review.

Does this prevent third-party groups from intervening? No. There’s nothing in the statute that precludes Rule 24 from applying. It simply indicates that only an “aggrieved” candidate for president, in the timing and circumstances identified above, has a case put into this special venue.

Does this “require” the Supreme Court to hear the case? No. And it’s not clear any congressional rule can compel the Court to accept a case to hear on the merits, either. Note that the Court declined to hear Texas v. Pennsylvania in 2020, despite a federal law vesting (with “shall”) “original and exclusive jurisdiction” over such cases. But it certainly entitles direct appeal to the Supreme Court.

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I imagine there are some who want more judicial involvement and others who may want less. But I think this mechanism (unsurprisingly, the result of extensive conversations and negotiations!) hits a sweet spot for the negotiating parties. I also think the advantages elsewhere in the bill can reduce litigation uncertainty–specifying that there is one Election Day and no “failure” alternative, requiring laws in effect before Election Day to govern, and the like. But, as I pointed out in the original statement in support of the bill signed with other distinguished academics, I think the bill is worth enacting. It strikes me that much of the commentary so far has not identified insurmountable barriers. I do think there will be some tweaks to be made (some questions have arisen about the timing mechanisms in 2284(b)(2) and how they interact with this bill, or whether other language or clarity could be improved), and we’ll see what the hearings in the weeks to come yield.