ECA reform must comply with the Constitution, as the bipartisan Senate ECRA bill does (but as some proposals to revise it would not)

The bipartisan Electoral Count Reform Act has no “fatal flaw,” as some incorrectly argue. Rather, the Senate bill is well-designed to suit its essential purpose of requiring ballots cast in presidential elections be counted according to the rules established before the ballots a cast—a point emphasized by President Obama’s White House counsel Bob Bauer, and others, at a hearing held last Wednesday.

It’s essential that any reform of the flawed 1887 Electoral Count Act comply with applicable provisions of the federal Constitution.  Yet some commentators seemingly wish for Congress to enact a new law that would exceed congressional power in the context of presidential elections and, in turn, contravene powers that the Constitution explicitly granted to the states whether we like it or not. 

I, too, wish we didn’t elect our presidents using an antiquated Electoral College system better suited for the eighteenth century than the twenty-first, favoring smaller states conceived as separate sovereigns assembled in a federated league rather than one unified continental country that elects its shared chief executive by a national popular vote in which each citizen from shore to shore participates equally. But until we amend the Constitution to jettison the outdated Electoral College, we need to conduct our presidential elections within its framework, and that includes the counting of both the popular and electoral votes that are components of the overall system. 

The fear of some is that state legislatures might enact laws that give themselves a role in counting the ballots that citizens cast to appoint their state’s presidential electors. To some extent, it’s a well-founded fear given what some state legislatures have done, or threatened to do, since Trump’s “Big Lie” claim that the 2020 election was stolen. 

But we need to be clear-eyed about what, consistent with the Constitution, Congress can—and cannot—do to combat this threat. Insofar as it’s suggested that Congress disallow state legislatures from making themselves, or one of their legislative committees, the ultimate authority to canvass and certify the count of the popular votes for president in the state, that’s a constitutional non-starter. Congress clearly lacks that power, no matter how desirable it would be for Congress to have it. (Even if one thought this constitutional issue debatable, amending the bipartisan compromise bill to provoke this debate would surely derail its chances of passage in the Senate.)

 Article II of the Constitution unambiguously gives state legislatures the authority to choose the “manner” of appointing the state’s electors. States don’t even need to hold a popular vote in the first place, although fortunately they all do. But Congress can’t insist that they continue to do so. If Congress passed a law saying that states must use a popular vote to appoint their electors, it would be blatantly unconstitutional.

The same is true for an Act of Congress that required states to use a court, or administrative agency, rather than the state legislature itself or one of its committees, to count the ballots that the state’s citizens cast to appoint the state’s electors. That congressional interference with the state legislature’s choice of the “manner” for appointing the state’s electors would be just as clearly a violation of Article II. (Nor would invocation of the Constitution’s Necessary & Proper Clause give Congress this power, as some suggest; it wouldn’t qualify as “proper” for Congress to contravene a power clearly granted to state legislatures instead.) 

In the nineteenth century, many state legislatures retained for themselves the authority to count the ballots in major statewide elections, like those for governor. It was not a salutary practice. The ugliest and most dangerous disputes over electoral outcomes, occasionally provoking violence, resulted from partisan abuse of this self-retained power by state legislatures. It was a progressive development, accelerated during the Progressive Era itself, that states largely abandoned this practice and instead vested in courts the ultimate authority under state law to settle vote-counting disputes.

Thus, in terms of public policy, it would be a terrible idea for state legislatures to give themselves the power to count ballots in presidential elections. But unfortunately it would be constitutional for them to do this—and unconstitutional for Congress to try to stop them.  

The good news, however, is that the Constitution—especially the Fourteenth Amendment, which didn’t exist for much of nineteenth century and wasn’t applied to vote-counting disputes until the second half of the twentieth—significantly constrains the mischief that a state legislature, like any other institution of state government, might attempt in a vote-counting context. 

First of all, as long as state legislatures continue to use a popular vote to appoint presidential electors, that popular vote must be counted as cast—and this is true even if the state legislature itself is the counting authority. The state legislature, after the ballots are cast, can’t decide to ignore or repudiate the count and attempt to appoint electors legislatively. This is true for two separate, and reinforcing, reasons in the federal Constitution.  One: Congress sets the “time” for appointing electors, and that time will have passed if a state legislature attempts to negate the popular vote that already occurred. Two: the due process clause of the Fourteenth Amendment prevents negating an election already held pursuant to law. 

Second, while it’s true that any institution of state government with authority to count ballots will have some irreducible degree of discretion in cases of genuine disputes on how to handle questionable votes—think of the partially marked ovals in Minnesota’s 2008 U.S. Senate election between incumbent Norm Coleman and challenger Al Franken, as one prominent recent example—it is also true that any institution responsible for counting the ballots must count them honestly, fairly, and accurately, and any flagrant disregard of this basic principle would violate the Fourteenth Amendment.  Bush v. Gore is just one example of the federal judiciary enforcing this Fourteenth Amendment requirement; there are many others, including one case from Alabama that especially illustrates how the federal judiciary will constrain any part of a state government that attempts to manipulate the counting of ballots to achieve a desired partisan outcome. This Fourteenth Amendment constraint on the partisan miscounting of votes would apply just as much to any state legislature retaining the counting authority for itself as it does to any state court or state canvassing board vested by the state legislature with this counting authority in a presidential election. 

The bipartisan Electoral Count Reform Act correctly builds on these constitutional principles and does not attempt to have Congress overstate its own role under the Constitution in presidential elections. It lets state legislatures set the rules for appointing the state’s electors, as it must, including the rules for counting the popular vote that the state uses for this purpose.  But it insists that electors be appointed based on the rules set in advance, as Congress is entitled to do, and it makes clear that if federal courts have intervened to enforce Fourteenth Amendment principles in the counting of the popular vote, the federal judiciary has the last word.  That way the popular vote is counted honestly, fairly, and accurately—whichever institution of state government does the counting—and all parts of the state government, including the governor and legislature, as well as Congress itself, must respect that judgment of the federal court.  This is the best way under the Constitution as it currently exists to make sure that presidential elections are decided based on the ballots that citizens cast.

This is what the bipartisan ECRA does—and does effectively. As the Senate hearing showed, some minor technical amendments would make it even more effective in its intended purpose.  But the “fatal flaw” would be for Congress to fail to enact it, especially because of a mistaken desire for Congress to enact something that would be beyond its constitutional power to impose upon the states. 

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