Lofgren-Cheney proposal to amend Electoral Count Act would create new federal cause of action over ballot tabulation

There’s a lot to say about e Lofgren-Cheney proposal (the “Presidential Election Reform Act”) to amend the Electoral Count Act of 1887, released yesterday and potentially voted upon by the House tomorrow (a very compressed timeline for public conversation about an important bill where the technical mechanisms matter a lot). It contains many details quite similar to the Electoral Count Reform Act introduced in the Senate, which has 10 Republican and 8 Democratic co-sponsors. And it diverges in a couple of areas, including how it handles emergency provisions for Election Day (some of the complexities I discussed here in the King-Klobuchar-Durbin discussion draft, and I have some of the same surface-level concerns with implementation in this draft, particularly with novelty of a cause of action in a time of crisis), and a cause of action to compel the state executive to transmit an accurate certificate of election (the complexities of causes of action I discussed here with the King-Klobuchar-Durbin bill).

I think these and other items (enumerating objections, the threshold for objections, etc.) reflect some of the good-faith disagreements about implementation that the Senate bipartisan group worked through to the Electoral Count Reform Act (although, so far, I’m partial to the language of the Senate bill), and it will be interesting to see how the process plays out.

But one provision near the end is worth some immediate discussion. The bill has three new federal causes of action, new ways to sue in federal court (two of which I just mentioned), and the third is notable. And it has potentially significant effects in future election litigation. As a standalone provision not really related to the rest of the bill, it’s not as crucial to the rest of the bill (or really directly addresses concerns about the Electoral Count Act in particular), and it’s something easily removed before amending the Electoral Count Act. But I wanted to highlight what it does and some questions I have about it.

Section 11 of the bill provides:

(a) PROHIBITION.—With respect to an election for the office of President, Vice President, or presidential elector, no person acting under color of law shall willfully fail or refuse to—

(1) tabulate, count, or report any vote that is timely cast and is otherwise valid under applicable
9 State and Federal law; or

(2) certify the aggregate tabulations of such votes or certify the election of the candidates receiving sufficient such votes to be elected to office.


(1) AUTHORIZING FILING OF ACTION BY CANDIDATE.—Any candidate for President, Vice President, or presidential elector who appears on the ballot in a State who is aggrieved by a violation of subsection (a) may file an action for such declaratory and injunctive relief as may be appropriate in the district court of the United States for the judicial district in which the capital of the State is located. . . .

(c) RULE OF CONSTRUCTION.—Nothing in this section may be construed to preempt any action conducted pursuant to State law duly enacted prior to the day fixed by section 1 of title 3, United States Code, or affect the right of any person to bring an action under any other Federal law.

There is an existing provision of the Voting Rights Act, Section 11(a), that is an origin for this kind of action:

No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of chapters 103 to 107 of this title or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote.

That is, failure to tabulate votes for eligible voters who are guaranteed the right to vote regardless of race or color; or guaranteed the right to vote regardless of a prohibited test or device banned by the Voting Rights Act, like a literacy test, is prohibited. It’s an enforcement mechanism for the specific guarantees of the Voting Rights Act.

H.R. 5746 (the Freedom to Vote: John R. Lewis Act), which didn’t make it out of the Senate, included a provision to protect the tabulation of votes by amending Section 11(a) of the Voting Rights Act, as follows:

(a) No person acting under color of law shall—

(1) fail or refuse to permit any person to vote who is entitled to vote under Federal law or is otherwise qualified to vote;

(2) willfully fail or refuse to tabulate, count, and report such person’s vote; or

(3) willfully fail or refuse to certify the aggregate tabulations of such persons’ votes or certify the election of the candidates receiving sufficient such votes to be elected to office.

H.R. 5746 also would have expressly amended Section 12 of the Voting Rights Act to empower the Attorney General to seek appropriate relief against anyone who “alters any official record of voting in such election tabulated from a voting machine or otherwise” Finally, it would also empower the Attorney General to file federal relief if persons share well-founded, prompt allegations that their ballots have not been counted in an election despite registration and eligibility, and may seek “an order providing for the counting and certification of the ballots of such persons and requiring the inclusion of their votes in the total vote for all applicable offices before the results of such election shall be deemed final and any force or effect given thereto.”

The Lofgren-Cheney bill doesn’t amend the Voting Rights Act, but instead adds a provision of federal law, including a private right of action for all presidential candidates or their electors, and expands the scope of such “right to tabulate” significantly. It would appear to provide a federal guarantee to comply with state law. (One can imagine any number of Jill Stein electors in 2016 circling states to sue local election officials to compel them to count certain ballots.) Now, I understand the caveat in the bill, “willfully,” may prevent courts from being too aggressive. And of course we all want every lawfully-cast ballot to be counted (an excellent reason states have robust canvass, audit, and recount tools).

But, I wonder what gaps this purports to fill that aren’t already in existing law. And there are questions that arise with such a proposal.

First, I have major Pennhurst questions about this bill. As the Court said in Pennhurst:

A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.

It is not clear to me that Congress can create a federal obligation for state officials to follow state law, then enable candidates to go into federal court to force state officials to follow state law. One could, of course, point to the fact that at times a failure to follow state law can create a federal problem, like an Equal Protection or Due Process violation. But those are separate issues from a federal statutory right to have state law followed. And this bill does not speak in terms of filing constitutional claims, but treats the violation of state law as the federal claim.

Second, would this preempt state causes of action? The rule of construction doesn’t appear to limit it, and it may preempt (or affect the preclusive scope of) some state litigation. It would seem to invite federal courts to visit state law questions–and to order state officials how to go about canvassing votes. Again, it’s not unlike the kinds of arguments raised in post-2020 election litigation, in which alleged violations of state law were claims in federal court for some judicial hook for review. Or one can look to other close near-miss recount litigation and wonder what might have happened if more aggressive litigation tools (like this statute) were available to swing what might otherwise appear to be a settled canvass. It would seem to embolden such claims.

Third, this “right to tabulate” language from the Voting Rights Act has been applied in the vote dilution context. That is, in an Alabama case in the 1960s, Black voters alleged that white voters were unlawfully permitted to vote via absentee, which diluted the power of Black voters. The district court found that Section 11 of the Voting Rights Act could be use to invalidate votes and provide an accurate tabulation. Again, one need not think back very far to arguments in 2020 that ballots cast in violation of state law (including absentee ballots without signatures, absentee ballots without dates, and so on) that should not have been counted. And again, in many states, defenses like laches and the like prevented the state actions from succeeding. Not necessarily here.

Novel causes of action like this one may, of course, be worth the tradeoffs. It may be that we’re missing some batches of ballots in states that state law isn’t catching, and we need a federal judicial tribunal to patrol those decisions in ways existing mechanisms are inadequate to handle. It’s possible, and I’m open to the argument, but I’m not sure I see that at the moment, I’m skeptical this mechanism doesn’t create more questions than answers. And as we try to streamline and simplify the Electoral Count Act, injecting new uncertainty in the process seems suboptimal. Again, as I opened this post, this section is discrete and could easily be excised from the rest of the bill. Or others might argue I have everything here wrong. But I thought I’d flag it, as it did jump out at me.

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