Gerard Magliocca: “The Electoral Count Reform Act and Section 3”

The following is a guest post from Gerard Magliocca:

During oral argument in Trump v. Anderson, many Supreme Court Justices expressed serious reservations about permitting states to enforce Section Three of the Fourteenth Amendment against a presidential candidate. These Justices suggested that we need a national solution to what is a national problem. Meanwhile, many scholars—including some members of this blog—are expressing serious reservations about a Supreme Court decision that does not resolve whether Donald Trump is eligible to serve again as President. They are alarmed that a Trump victory in November will lead to a constitutional crisis culminating—ironically enough—in a challenge raised before the Joint Session of Congress that counts the electoral votes on January 6th,2025. The Electoral Count Reform Act of 2022 (“ECRA”) is national legislature that was supposed to prevent this kind of train wreck, but the interplay of the Act and the Court’s probable opinion in Trump may frustrate Congress’s intent.   

 The ECRA provides that any “aggrieved” presidential or vice-presidential candidate may bring a federal lawsuit after the election to challenge the validity of the results certified by the states based on a claim “that arises under the Constitution or laws of the United States.” This action must be heard on an expedited basis by a panel of three federal judges with review in the Supreme Court. And any judicial decision “shall be conclusive in Congress” when the Joint Session convenes to count the electoral votes. The point of this provision was to obtain a prompt national judicial ruling on any federal legal challenge to a presidential election result and effectively eliminate the need for Congress to make that decision.

But there is a problem. The ECRA did not create an independent cause of action. Congress assumed that any constitutional challenge by a candidate to a state presidential certification could be brought under an existing cause of action (for example, a state contest statute). The ECRA merely established federal venue and an expedited procedure for such challenges. In Trump, though, the Supreme Court may hold that states are barred from providing a cause of action to enforce Section Three. And there is no federal cause of action to enforce Section Three. This would mean that an “aggrieved” candidate could not invoke the ECRA judicial process for a Section Three claim and could only go to the Joint Session of Congress. The judicial review provision would be stymied, and chaos could result.  

There is a chance that this unfortunate scenario will not play out. A great deal rides on how the Court explains its new “Dormant Insurrection Clause” rule. For instance, there may be a meaningful difference for ECRA purposes between a holding in Trump that Congress must provide a cause of action to enforce Section Three against presidential candidates versus a holding that says that Congress need only authorize such Section Three enforcement. The ECRA does the latter but not the former. There are other ways to square the circle, but the danger is that the Court may be unaware that there is even a problem because the details of the ECRA were not presented to them in any of the briefs.

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