State legislatures should examine their election codes after passage of the Electoral Count Reform Act

The new Electoral Count Reform Act will have an effect on state election laws in presidential elections. The timing mechanisms have changed, and rules now expressly invite state legislatures to make explicit choices before Election Day. And states should be aware of how the changes could affect their own election codes, and whether they should revisit some of their existing choices.

First, the ECRA abolishes the “failed to make a choice” provision of the 1845 act (North Carolina may need to repeal its law to this effect) and replaces it with a firm, singular “election day” requirement, with one exception: “except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day.” States should provide those clear rules before the election for what “extraordinary and catastrophic” “force majeure” events trigger a modified period of voting. (This only applies to presidential elections, but it could also apply to state elections happening at the same time, if a state so chose.)

I commend the work of Professor Michael Morley, who has offered extensive and thoughtful views on what election emergency statutes should look like. To borrow from one of his recommendations in an Emory Law Journal piece from 2018:

[A]n emergency that is either of limited duration or affects only a limited geographic area is best addressed through an election modification, in which the election is allowed to proceed with only minor changes to the generally applicable laws. Examples of election modifications may include relocating polling places, extending the hours of polling places that were temporarily inoperable, using paper ballots instead of electronic voting machines, permitting voters to cast ballots through alternate means, or allowing re-votes if certain cast ballots are destroyed before being counted. One important issue such laws present is whether election officials should have discretion to implement such measures on their own, must wait for a declaration of emergency from local or county officials or the governor, or instead must seek a court order before implementing such changes. A statute requiring judicial permission before extending polling place hours, or making other substantial modifications to the rules governing an election, would be a particularly prudent safeguard.

Express guidance for what events qualify, with a requirement for judicial permission, would be “prudent” indeed.

Second, the ECRA adds a firm deadline for executives to submit certificates of ascertainment of appointment of electors (no more “safe harbor” or presumptions). States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window. States like California have languished in completing their canvass in recent years, taking up to 30 days to resolve the initial canvass, setting aside even the possibility of recounts (in the event of a close election). Some states allow ballots to come in seven to ten days after Election Day, and maybe that continues to work to meet existing deadlines, but states should strive for wrapping up the canvass as quickly as possible after the last ballot comes in. Other states have developed newer recount triggers, or risk-limiting audits, which should be completed with an eye toward this firm deadline. But states should think about how they plan on running through each of these steps (which Georgia mostly had to do in 2020!) in a tight time frame.

Relatedly, expedited state judicial resolution should be considered in the states, including specially-created contest courts or expedited appeal mechanisms. (Iowa, for instance, creates a seven-judge tribunal with no right of appeal for election contests in federal races, to be resolved “six days before the first Monday after the second Wednesday in December next following,” i.e., the old “safe harbor” deadline, which means it should probably be updated!)

The precedent from Hawaii 1960 has been repudiated. That is, no more judicial challenges or recounts extending into January.

Third, the new ECRA expressly requires a “security feature” on the certification of ascertainment of appointment of electors, “as determined by the State.” This is a modest requirement, and perhaps the seal on state certificates are adequate, but it’s worth considering what feature the states will use.

Fourth, the ECRA defaults to the executive to the “governor,” but state law may identify “a different State executive” to perform the duty (say, a Secretary of State) if it so chooses.

State legislatures should take a step by step approach to examine what the ECRA does and how it meshes with their existing election code. Formally, no state will be forced to make a change, as the new federal obligations simply exert different pressure on existing state law. But it provides an opportunity for states to modernize their election codes to meet the clearer federal guidelines ahead of the next presidential election.

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