Derek has an important post responding to various concerns raised about the bipartisan Senate ECA reform bill. Here I just want to make one additional point in response to a comment made by Marc Elias. In his critique of the new bill, Marc writes: “Conclusive is a very strong word. Typically, in legal construction, a fact or piece of evidence is conclusive when it is settled and cannot be contradicted by other facts or evidence.”
Marc is correctly concerned, as am I (among many others) that a “Big Lie” governor might attempt to negate the true result of a state’s popular vote. He fears that the use of the word “conclusive” in the new bill would bind Congress to the election subversion perpetrated by the “Big Lie” governor. This fear, in my own analysis of the bill, is ill-founded.
First of all, the word “conclusive” is not new to the Electoral Count Act. Rather, it is a key element of 3 U.S.C. § 5 in its current text. The problem, however, is that this word is buried in a morass of nineteenth-century verbiage, and so the role it is supposed to play has been ignored.
Congress already is supposed to accept as “conclusive” any “final determination” of any adjudication concerning the appointment of a state’s electors if that “final determination” is made pursuant to laws enacted prior to Election Day (and occurs six days before the meeting of electors). The tragedy that occurred on January 6, 2021—with all the violence at the Capitol—happened because members of Congress, including Senator Josh Hawley in announcing his willingness to join an improper objection to be made by Representative Mo Brooks, among others in the House—violated their obligation to accept as “conclusive” the “final determination” of all litigation over the counting of the popular vote for president, upon which appointment of electors was based, that took place in Pennsylvania (and other states that Trump was disputing). Indeed, every objection made to electoral votes in a joint session of Congress since 2000 was a violation of this obligation to accept as “conclusive” the “final determination” that had been according to the applicable procedures for counting the popular vote in the states.
The new bipartisan bill helpfully highlights the word “conclusive”—making it unambiguously clear that Congress must accept electoral votes cast by electors whose appointment is made based on the laws for counting the popular vote in a state. Marc worries that a rogue governor “could certify the “Big Lie” presidential candidate as the winner even if the best evidence showed that he or she had lost the presidential election.” But this rogue governor would not be acting consistently with the law that required certification to be based on the accurate count of the popular vote, and it would not be the rogue governor’s lawless certification that would receive “conclusive” status, but instead the judicial decision that ordered compliance with what the law of the state required with respect to counting the popular vote.
Moreover, if for some reason the state’s judiciary failed to order compliance with the state’s laws for identifying the true winner of the popular vote, then the federal courts would step in to insist upon this compliance. After all, the Fourteenth Amendment requires that all ballots cast in a statewide election be counted equally in accordance with applicable state laws. That Fourteenth Amendment proposition was the uncontroversial part of Bush v. Gore; what split the Supreme Court 5-4 in that case was whether to let the Florida judiciary have another chance to conduct a recount in conformity with this fundamental Fourteenth Amendment requirement.
The new bipartisan bill does what Marc and we all should want if a governor acts in defiance of the popular vote, as validated in judicial proceedings. The bill instructs Congress to count the electoral votes cast by electors whose appointment derives from the judicially validated popular vote, and the bill requires Congress to reject any contrary submission of electoral votes from the same state even if that contrary submission is backed by the state’s governor. If the specific technical language that the bill uses to achieve this result could be improved to make its text even clearer on this crucial point than it already is, that would be fine (as long as tinkering with the text doesn’t start to unravel the bipartisan agreement on the current bill, which was months in the making).
But there should be no deviation from the bill’s basic philosophy, which is to make “conclusive” the count of a state’s popular vote pursuant to the rule of law, thereby foreclosing any avenues on the part of any partisan politician—governor or otherwise—to contravene the rule of law based on displeasure with the counting of the popular vote that the rule of law provides.
Presumably, Marc does not want Congress to have the power to repudiate a state’s popular vote because, for partisan motives, it dislikes the outcome. It’s easy to imagine the House and Senate, with the same political party in control of both, on January 6, 2025 wishing to nullify the Electoral College victory of the other party’s candidate. Even apart from the constitutional argument that the joint session of Congress that meets pursuant to the Twelfth Amendment has no authority to recount a state’s popular vote contrary to the count achieved pursuant to state law upon which the appointment of electors was made, it would be dangerous to democracy for Congress to attempt to assert this kind of authority. Unless Congress is bound to accept as “conclusive” what the courts have upheld as the true count of the popular vote, there’s the risk that Congress will take matters in its own partisan hands and engage in its own version of election subversion.
Even worse in this respect is the current ECA that the new bill would replace. The current ECA would permit exactly the kind of “Big Lie” governor that Marc fears, if supported solely by one chamber of Congress (not both), to negate the state’s popular vote even if validated by both states and federal courts. The new bipartisan bill may not be perfect in every last detail (what piece of legislation ever is?), but measured by Marc’s own test of whether it makes “elections fair and safer” by avoiding partisan nullification of results by governors and other rogue officials, the answer is undoubtedly yes.