This Washington Post newsletter covers Marc Elias and Norm Eisen’s concerns with the Senate bill revising the Electoral Count Act.
First, the bill might complicate how governors certify winning candidates. It treats governors’ certificates of ascertainment naming electors to the Electoral College “as conclusive.” For Elias, this language suggests that litigants could not challenge such certificates in court. Under his theory, a rogue governor could name their preferred candidate as the winner over the candidate that obtained the most votes. Yale Law School Fellow Matthew Seligman and others find this interpretation implausible.
Second, Eisen argues that the bill does not define key terms. (See his Twitter thread here.) He hypothesizes that these ambiguities may exacerbate uncertainties in contested elections. Republican election law lawyer Benjamin Ginsberg counters that these oversights are minor. The value in passing a consensus bill–especially before the next presidential election–significantly outweighs any defects in the proposed legislation.
Update: Ned Foley blogged earlier about the Lawfare piece in which Bob Bauer and Jack Goldsmith respond to a number of concerns about the potential revisions to the Electoral Count Act. The Washington Post newsletter is best read alongside that Lawfare piece.