“Preventing the Next Jan. 6 Riot”

Wall Street Journal editorial with this subtitle: “At last there’s a serious proposal to reform the Electoral Count Act.” The editorial largely praises the new bipartisan Senate bill, while raising some questions. For example:

What happens if a rogue Governor refuses to recognize the winner of the popular vote in a state? Courts could invalidate incorrect electors, but could they force the creation of a true certificate? Maybe it would depend on how state laws treat gubernatorial nonfeasance. That’s a point to explore in the coming debate.

This point actually can be addressed by a close reading of the bill, in combined with the editorial’s own preference for reliance on courts “to sort out disputes over electoral law and votes, as the Supreme Court did in 2000 in Bush v. Gore.” As revised by this bill if it becomes law, the new 3 U.S.C. 5(c)(1)(B) would provide: “any certificate of ascertainment of appointment of electors 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 submitted pursuant to this section.” What this means is that no rogue governor can get away with being rogue by refusing to issue a new certification required by a court. Yes, the bill also contains additional provisions designed to force a rogue governor to comply with judicial decrees and issue the new certification as required.

But the specific language of this clause automatically “replaces” any prior certification with whatever the courts have “required to be revised” even if governor refuses to comply with the judiciary’s requirement. In other words, the judicial decree of what the certification must entail becomes the controlling instrument that receives the “conclusive” treatment that Congress must accept in the joint session under the Twelfth Amendment. No rogue governor can force upon Congress a contrary certification in defiance of the certification that the courts have mandated.

The editorial argues that “best fix for the ECA would be full repeal.” I disagree. Given the sparse language of the Twelfth Amendment itself, history has shown (most especially the disputed election of 1876) that the quadrennial joint session of Congress for counting electoral votes needs a set of clear procedures for what happens if there arises any challenge to a state’s electoral votes. If the courts have spoken in precisely the way that the editorial wants, and yet a governor attempts to go rogue in the way that the editorial fears, so that the joint session of Congress receives two submissions from the same state–one reflecting the judicial determination of which candidate won the popular vote, and the other reflecting the rogue governor’s opposition to that judicial determination–the joint session needs a rule that dictates that it must accept the judicially determined “true” result (to use the editorial’s word) rather than the false submission from the governor. The Twelfth Amendment is not sufficiently self-executing in this respect, as leading jurists as long ago as James Kent and Joseph Story recognized by the 1830s.

The Wall Street Journal editorial wants a procedure that make sure that each joint session of Congress does the right thing. “No rejecting electors merely because Congress sees shadows of ‘voter suppression’ or ‘fraud'” is how the editorial puts it. The new bipartisan Senate bill provides precisely what the Wall Street Journal editorial seeks. Indeed, the editorial recognizes that “the Senate reform goes a long way to diminishing the margin for catastrophic political error.” The bill is actually even better in this respect that the editorial gives it credit for–and certainly is better than either keeping the current law or repealing it without any replacement.

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