This is a joint post with Ned Foley:
Along with a bipartisan group of election-law experts, we endorsed the bipartisan Senate draft Electoral Count Act Reform bill as a “vast improvement” over the status quo. None of the suggestions for improvement that have emerged in public commentary so far have changed our views about that.
In a recent op-ed, Larry Tribe and his co-authors listed a number of suggested refinements of the bill and raised one major concern about it. We agree with some of their suggested tweaks to the bill, as long as sufficient bipartisan support exists for those clarifications. In this brief space, we won’t go through each of those suggestions one by one. But we do want to clarify the relevant legal framework regarding two of the specific issues they raise.
First, the Tribe op-ed suggests amending the bill to clarify that the Vice President cannot “delay” the counting of the votes in the Joint Session of Congress. But the Electoral Count Act already prohibits that. Once the Joint Session begins, it cannot be delayed. 3 USC Sec. 16 states: “Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this subchapter, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of 10 o’clock in the forenoon.” (emphasis added). Vice President Pence understood this. There is no need to amend the bill to prohibit what existing law already prohibits, but if doing so would provide reassurance to anyone, we suppose there is no harm in that.
Second, and more importantly, the Tribe op-ed worries that the bill’s intent could easily be circumvented in this way: “An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote.” Since no more specific example is provided, it’s not entirely clear what nightmare scenario they envision. Perhaps the fear is that such a law would permit state actors to decide to ignore the popular vote and appoint different electors than the ones the people chose on election day. But if that’s the fear, federal law – again – already prohibits that. Congress has established the date on which electors must be appointed, which is Election Day. 3 USC Sec. 1. State legislatures cannot give themselves the power to appoint electors after Election Day, whether they try to do so by a law enacted in advance of the election or one enacted after.
Once the popular vote has taken place, the electors have been appointed. It still remains to count that vote and certify the winner. Perhaps the fear is that state law, enacted in advance of the election, would give the legislature the power to count that vote or to review the vote count or to be the entity that certifies the winner. But whatever role the legislature might try to give itself, at that point it still has to count the actual vote as it has been legally cast. And just like any other state entity that would count the vote, that process is subject to all the constraints of the U.S. Constitution, which state and federal courts exist to enforce. Those constraints include the principle of Bush v. Gore, that all ballots statewide have to be treated equally and that there cannot be any arbitrary treatment of ballots; these constraints also include due process protections that prohibit efforts after votes have been cast to attempt to change the law in the guise of applying it, as Pam Karlan summarizes here and as the scholarship from one of us elaborates more fully here.
State legislatures cannot circumvent the requirement that electors cannot be appointed after Election Day. They cannot circumvent the requirements of the Constitution, if they try to insert themselves into the vote counting process.
It remains the case that state legislatures could, in theory, decide not to permit their citizens to vote for President at all and appoint the electors themselves – a practice every state but South Carolina abandoned by 1832 (when Colorado first became a state, it used legislative appointment in 1876 for that election). Electoral Count Act reform can’t prevent that, because the Constitution gives state legislatures the power to choose “the manner” of selecting electors. But we assume the political blowback in the modern era from completely denying all citizens in the state a vote would be substantial.
If there are still further means through Electoral Count Act reform to protect against partisan manipulation of the process that would draw sufficient bipartisan support, we would support those – though we have yet to see any concrete suggestion for how to do that for the situations the Tribe op-ed envisions. But it is important to understand the full context of surrounding law in evaluating Electoral Count Act reform.