Pam Karlan: “The Virtues of the Electoral Count Reform Act”

The following is a guest post from Pam Karlan, now back at Stanford:

The Electoral Count Reform Act (ECRA) is a vast improvement over the existing Electoral Count Act of 1887, whose ambiguities and gaps became evident during the elections of 2000 and 2020.  The ECRA makes a number of sensible and important changes to the law governing selecting the president.  It repeals the “failed election” provision of 3 U.S.C. § 2—which some partisans have asserted empowers state legislatures to reject the popular vote and appoint a slate of electors themselves whenever they think the election was flawed in some undefined way.  It creates an expedited process for judicial resolution of claims arising under federal law that also eliminates forum shopping.  With respect to procedures within Congress, it raises the threshold for objections to accepting a state’s electoral votes, making it harder for a handful of hard-line members to transform the process into guerrilla theatre.  And it clarifies that the Vice President’s role when the electoral votes “be counted” is purely ministerial: she or he cannot decide which votes should be counted and for whom.

But the core virtue of the ECRA goes well beyond its elaborations on the presidential election-specific provisions of Article II, § 1 or the Twelfth Amendment. Rather, it stems from the Act’s requirement in section 1 that the selection of presidential electors be made “in accordance with the laws of the State enacted prior to election day.” This requirement embodies a constitutional provision at the heart of the law of democracy: the Due Process Clause.  Not only should this resolve questions about the ECRA’s constitutionality—properly understood, the Act represents “appropriate legislation” under Section 5 of the Fourteenth Amendment—but it situates the Act as a valuable first step in a larger conversation about election administration and voting rights.

As we explore in our casebook, The Law of Democracy, an important set of federal constitutional interests in election procedures revolve around two due process-based values. (For our most explicit discussion, see the materials on the Roe v. Alabama trilogy involving the question whether certain absentee ballots should have been counted in a judicial election.)  The first is a reliance interest.  The right to vote is a species of liberty (or perhaps property—the Supreme Court decisions do not expressly establish which) protected by the due process clause. In practice, this means that citizens are entitled to bank on the law in existence at the time they cast their votes.  If state law tells them that their vote will go to determining their state’s slate of presidential electors, it would violate procedural due process for the state then to cancel that method after they have invested their time in casting a ballot in the presidential race.  (There may even be a substantive due process interest at stake, as I suggested at a symposium following the 2000 presidential election.  “[T]radition, as reflected in longstanding federal and state practices” has settled on popular election as the method of selecting electors, and our constitutional order may therefore have “simply evolved beyond the point at which a state can strip citizens of their right to participate in choosing the President.”)  The ECRA vindicates this due process reliance interest by ensuring that citizens can make their decisions about electoral participation knowing that the law on the books when they vote will determine how electors are selected.  They will not cast their votes in vain.

A second due process value at stake in the electoral context involves impartiality. Post-hoc changes in electoral rules threaten due process by injecting unconstitutional unfairness into the system.  This takes a number of forms.  It can involve outright bad faith: government actors who don’t like particular election outcomes can simply change the rules to change the results.  But it can also involve more subtle forms of partiality in which decisionmakers’ answers to a specific legal question are unconsciously influenced by the partisan context in which the legal questions arise.  And even if decisions are not in fact skewed by implicit (or explicit) bias, public faith in the impartiality of the process will be affected when the effect on electoral outcomes is obvious.  This may be a particular risk for the judiciary: recall that in the post-2000 presidential election litigation, many Republicans were convinced that the Florida Supreme Court, a majority of whose members were Democrats, had changed the rules on which ballots should be counted to benefit Al Gore, while many Democrats were just as convinced that the Republican-nominated U.S. Supreme Court majority had made up new doctrines regarding the effect of the Electoral Count Act’s so-called safe harbor provision to benefit George W. Bush. Setting the rules for how a state selects its electors in advance, as the ECRA requires, both guards against the rules being changed by the states once their outcome effects in a specific election are obvious and creates clearer rules for the federal courts to enforce.

To be sure, the ECRA will not entirely solve the problem of determining the precise content of the “laws of the State enacted prior to election day.” There remains a possibility of arguments over whether a particular post-election administrative interpretation or state judicial decision has departed so significantly from either statutory text or consistent practice as to violate section 1’s requirement.  But section 1 creates a powerful incentive for lawmakers to enact laws of sufficient specificity to minimize that risk.  As long as the state announces its rules ahead of time, and those rules comply with federal law, those rules control the process.

Beyond the vast improvement the ECRA makes over the existing Electoral Count Act, the ECRA also offers an opportunity that voting rights lawyers and activists should take to restart the broader conversations over election administration and voting rights that seem to have stalled after the congressional failures to move forward on the For the People Act and the John Lewis Voting Rights Advancement Act.

As we point out in the preface to the sixth edition of The Law of Democracy, we live in an era characterized by democratic backsliding around the world; in our own polity, “[t]he right to participate is more fraught than it has been in quite some time, and there are more challenges to how and when voting might occur than in years past.”

Impartial election administration is under unprecedented pressure.  Perhaps the bipartisan agreement on the importance of impartial rules that produced the ECRA can serve as a point of departure for building consensus on the need to enact legislation at both the federal and state level to modernize and safeguard nonpartisan election administration more generally.  The Electoral Count Act, after all, is not the only element of current election administration that needs updating.

And perhaps the ECRA also offers a starting point for building broader support for the proposition that states should not be permitted to manipulate elections by changing the rules that determine who can vote and whose votes will be counted.  We need to persuade the public that having “laws of the State enacted prior to election day” is a necessary, but not a sufficient, condition for ensuring that American elections are truly fair and democratic.  Those laws need to provide all citizens with a full and equal opportunity, in the words of section 14(c)(1) of the Voting Rights Act, to register, cast a ballot, and have that ballot “counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.”  What the 2020 election cycle powerfully reminds us is that if we cannot conduct fair presidential elections, we won’t have the ability to obtain federal protection for voting rights more generally any time soon.  By improving the presidential election process, the ECRA moves us one step closer to protecting democracy.

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