“State Implementation of the Electoral Count Reform Act and the Mitigation of Election-Subversion Risk in 2024 and Beyond”

Very important piece from Kate Hamilton in the Yale Law Journal Forum:

The 2020 election and its aftermath were a shocking warning that election subversion poses a threat to the continued health of American democracy. Unlike voter suppression, which is aimed at limiting the ability to vote, election subversion is the manipulation of postelection processes to install candidates who did not win their offices under established election rules.1 Traditionally, the possibility of election subversion seemed remote—even “absurd”2—as it had seldom occurred on even a small scale throughout the nation’s history.3 But former President Donald Trump’s effort to overturn the 2020 election results revealed pressure points and underdeveloped areas of state and federal law. These vulnerabilities nearly enabled partisans to interfere with counting and certifying election results, thereby potentially allowing losing candidates to claim elected office notwithstanding the actual votes cast and counted.4 Baseless legal challenges and fraud allegations, frivolous mass challenges to specific ballots, and threatening conduct toward election officials further empowered partisan interference and sowed distrust in the legitimacy of the election.5

Congress addressed some of these weaknesses by passing the Electoral Count Reform Act (ECRA) in late 2022—a rare act of bipartisanship in the elections context, and a major step toward preventing the type of subversion that was so dramatically on display following the 2020 presidential election.6 The legislation overhauled the archaic Electoral Count Act (ECA) of 1887, which had provided the primary legal framework for casting and counting Electoral College votes in presidential elections for more than a century.

The ECRA has been rightfully celebrated for the changes it makes to the process by which Congress counts electoral votes. But since presidential elections—like all federal elections—are administered by states and localities, any effort to combat election subversion must depend on state law. Despite their primacy in our electoral system, there is, as Miriam Seifter has pointed out, “not much scholarship assessing the role of states in protecting democracy.”7 Nonetheless, as Seifter explains, “state-level interventions provide an important and time-sensitive opportunity to reinforce democracy. Failing to seize the opportunity threatens to accelerate anti-democratic developments.”8

This Essay is the first to focus on one particular urgent state-level intervention: ensuring that state election law complies with the new ECRA.9 While many federal election laws require state cooperation, the ECRA operates, as Cass R. Sunstein has observed, by “mak[ing] state law decisive.”10 Indeed, it is designed to ensure that each state submits a “single, conclusive slate of electors” to Congress by a mandatory, uniform deadline.11 As a result, the new ECRA’s success hinges on states’ ability to select and certify a single slate of electors to Congress by the new deadline—processes entirely dictated by state law.

To establish a roadmap for states updating their election codes ahead of the 2024 presidential election, this Essay proceeds in three parts. First, Part I details how Congress crafted the ECRA to prevent the election subversion that nearly succeeded in 2020, and why the new legislation requires states to bring their own election laws into compliance. Part II identifies one of the ECRA’s most significant changes for state election administration—the replacement of the former “safe-harbor” date with a mandatory deadline—and its consequences for state election procedures. Finally, Part III offers urgent prescriptive suggestions for states to meet the new deadline as they enter their final legislative sessions before the 2024 presidential elections.

To be sure, there are myriad ways in which states can and should shore up their election codes to mitigate election-subversion risks. Among other interventions, they should limit frivolous challenges to voter eligibility, disallow partisan audits, and develop contingency plans for election emergencies. But while such changes can be contentious and fiercely partisan,12 the ECRA’s overwhelming bipartisan support13 makes its implementation a natural and urgent starting point for states as they endeavor to safeguard the nonpartisan election administration that was for so long taken for granted in the United States.14

Share this: