Bauer and Goldsmith: “Clarity about the Electoral Count Reform Act and Gubernatorial Certification.”

The following is a guest post from Bob Bauer and Jack Goldsmith:

In a thoughtful editorial, the Washington Post has stressed the importance of congressional action this fall on Electoral Count Act reform. It correctly identifies the Senate bill put forward by a bipartisan group led by Senators Collins and Manchin as the “plausible path through Congress” for this reform and “an achievement given today’s politics.” All in all, the Post says, it is a “remarkable compromise.” While noting that the bill is subject to improvement on specific issues, the Post also cautions that the amendments process should not “imperil the entire enterprise.”

One potential improvement that the editorial mentions would clarify that the slate of electors certified by a governor cannot be treated as “conclusive” and is subject to challenge in court or before the Congress. It describes this potential change as “trickier” than others but “perhaps still achievable.” The worry here seems to be that the Bill as written leaves open the possibility that an invalid or corrupt gubernatorial certification could have the final say on which electors from the State Congress must credit.

This worry is misplaced. The Senate bill provides, in clear terms, that any gubernatorial certification is, in fact, subject to legal challenge and does not bind the Congress if, upon suit by a presidential or vice-presidential candidate, a federal court determines that the governor’s certification does not reflect the outcome of the election as determined by state laws in place on Election Day. It is the ultimate judicial determination, not the governor’s initial issuance, which is treated as conclusive for Congress’s purposes in its final tally of any state’s electoral votes.

A further clarification of the Bill’s express intent would not, in fact, be tricky or unachievable. It can be done. At the same time, in fairness to the careful drafting reflected in the current version of the Bill, it is worth showing how that it treats as “conclusive” the outcome of the judicial review of any challenged gubernatorial certificate.

The relevant provisions of the bill, in § 5, bear citing in full to lay to rest any question. Section 5(a)(1) of the bill requires the governor of each state to “issue a certificate of ascertainment of appointment of electors, under and in pursuance of” the relevant laws of the State enacted prior to election day.  It prescribes the form the certificate must take, and the Governor’s duties to transmit the certificate to the Archivist of the United States. 

But that is not the end of the matter.  Section 5 also addresses what happens if there are irregularities in the Governor’s certificate of ascertainment.

Section 5(c)(1)(A) provides that “the certificate of ascertainment of appointment of electors issued pursuant to this section shall be treated as conclusive with respect to the determination of electors appointed by the State.” (emphasis added). The certificate of ascertainment deemed to be “conclusive,” therefore, is the one that emerges from the entire process outlined in Section 5. 

The Section 5 process makes clear that the Governor’s decision is not the final word.  The very next sentence of the bill, 5(c)(1)(B), provides that “[a]ny certificate of ascertainment … [submitted by a governor] as required to be revised by any subsequent state or federal judicial relief granted prior to the date of meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.” (emphasis added). The state or federal judicial relief contemplated here has a firm basis in pre-existing law, and the bill in Section 5(d) adds a venue provision and expedited review in the federal courts system.

After providing that certificates as required to be revised by state and federal courts must replace the Governor’s certificate, the Bill makes clear that it is these judicial determinations, and in particular the ultimate determination (if any) in federal courts, that has the final say on the content of the certificate. Section §5(c)(2) states: “The determination of federal courts on questions arising under the Constitution or laws of the United States with respect to a certificate of ascertainment of appointment of electors shall be conclusive.” 

In sum, the certificate “issued pursuant to” Section 5 that Section 5(c)(1)(A) says must be “treated as conclusive with respect to the determination of electors appointed by the State” is, as §5(c) makes explicit, the one as crafted after judicial review in federal court.

The bill also specifies that the conclusive character of this federal judicial determination specifically applies to Congress’ electoral vote count.  The bill addresses “Counting electoral votes in Congress” in Section 15.  Section 5 makes clear, in Section 5(c)(1), that the certificates that emerge from Section 5 and that “shall be treated as conclusive” are treated as conclusive “[f]or purposes of Section 15”—that is, for purposes of Congress’s electoral vote count.

So, could this point be further “clarified”?  Statutory language typically requires clarification only where there is some reasonable doubt about its meaning. But some might think that even in the absence of doubt, this clarification might have politically strategic value in the negotiation of fixes and tweaks to the Senate bill. On this theory, critics who misread the current language would be assuaged and one point of contention taken off the table.   

That is judgment is properly left to Members of Congress who best appreciate what is necessary to bring this reform to enactment. But any such clarification, if pursued for these purposes, should not understood to respond to a genuine drafting defect or omission in the current version.

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