Greg Sargent and Paul Waldman in the Plum Line for the Washington Post:

“Here’s the basic principle at play: The aim is to close off manipulation of the process at both the state and congressional ends. In the proposal, Congress bars state legislatures and governors at the front end from breaking their own laws (or the Constitution) dictating the appointment of electors. If they do so anyway, it triggers automatic judicial review and then requires Congress to count the correct electors at the back end.

“This proposal effectively constrains both state officials and Congress to count the true electors,” legal scholar Matthew Seligman, an expert on the ECA, tells us.“

Washington Post editorial supporting the bipartisan Senate ECA reform bill. Here’s an excerpt (which links to the earlier joint post):

‘Perhaps most important are changes that would impede state-level mischief. By identifying governors as responsible for submitting a slate of electors, appointed according to rules in place before election day, the legislation would exclude competing lists from other officials. Better yet is a process to counter a rogue governor who lodges an illegitimate submission for approval by a friendly House or Senate. Under the reformed act, any such attempt could be challenged by a vice-presidential or presidential candidate in federal courts, to whose judgment Congress would be bound. Finally, the bill would ensure that state legislatures can’t simply override the popular vote by calling it a “failed election.”‘

Another excerpt links to ECA-related scholarship by Matthew Seligman: “According to one scholarly study, the losing party in nine of the past 34 presidential elections could have exploited gaping holes in the law to overrule the people’s decision.”

The editorial closes by recognizing that “[t]he Electoral Count Reform Act will not fix everything, because it can’t fix everything.” Speaking directly to Democrats, its last point is: “Democrats are right to dream of even more than is on offer today, and they’re right to push hard as they investigate the events surrounding the Jan. 6 insurrection. But they would also be wrong to say no to what they might be able to get from this legislation.”

This post is jointly authored by Ned Foley, Michael McConnell, Derek Muller, Rick Pildes, and Brad Smith.

The bipartisan group of Senators, led by Senators Collins and Manchin, have released a draft bill for a revised Electoral Count Act (ECA). We want to state here why we, a bipartisan group of law professors, support it and urge Congress to enact it this summer.

Here are the main features of the draft, which are a vast improvement on the existing Act from 1887. These features appropriately respond to the need to update the Act to protect the integrity of future presidential elections.

First, and most importantly, in its revisions to the current provisions of U.S. Code, the draft bill reflects the philosophy that disputes over which presidential candidate won the popular vote in a state should be settled according to that state’s law, adopted in advance of the popular vote, subject, as required by the Constitution, to the supremacy of applicable federal law. As revised by the draft bill, 3 U.S.C. § 1 would now read: “The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” The italicized language is new, and may not be a lot of words, but it embraces the key point that the appointment of electors must be pursuant to the rule of law, and not the partisan whim of state officials disgruntled with the outcome of the popular vote.

Continue reading Why Congress should swiftly enact the Senate’s bipartisan ECA reform bill →

[UPDATE: Here’s the text of the bill.]

Senator Collins office on the bipartisan effort she led with Senator Manchin:

“In addition to Senators Collins and Manchin, the senators involved in the bipartisan negotiations include: Rob Portman (R-OH), Kyrsten Sinema (D-AZ), Mitt Romney (R-UT), Jeanne Shaheen (D-NH), Lisa Murkowski (R-AK), Mark Warner (D-VA), Thom Tillis (R-NC), Chris Murphy (D-CT), Shelley Moore Capito (R-WV), Ben Cardin (D-MD), Todd Young (R-IN), Chris Coons (D-DE), Ben Sasse (R-NE), and Lindsey Graham (R-SC).“

Also this:

‘“Debates over the political ‘rules of the game’ can be fraught with suspicion and jockeying for advantage. When these rules change, there must be buy-in from both parties to maintain trust in the system,” said Matthew Weil, Executive Director of the Democracy Program at the Bipartisan Policy Center. “This bipartisan Senate framework is a critical step for shoring up ambiguities in the Electoral Count Act. These senators, especially Sens. Manchin and Collins, should be commended for finding common ground on a matter that is so foundational to our democracy: faith in the system that selects our leaders.”

“We are impressed with the draft Electoral Count Act reform legislation developed by a bipartisan Senate working group, including Senators Collins, Manchin, Romney, and Murphy,” said Bob Bauer and Jack Goldsmith, co-chairs of the Presidential Reform Project. “Our work on these reform issues, which has included co-chairing a group of experts convened by the American Law Institute (ALI), has convinced us that major improvements in the current law are both urgent and achievable. We believe the legislation as proposed will help curtail threats to future presidential elections that would erode the foundational democratic principles of our country. It merits broad support.”‘

Blake Hounshell in “On Politics” for the New York Times discusses a poll of voters in five states on their perception of the upcoming Secretary of State elections in those states. His big picture observation is that “a remarkable symmetry emerges: Supermajorities on both sides express concern that “elected officials will attempt to overturn the will of the people,” for instance, but of course each group is worried about the other team subverting the true results — and each group differs on what those are.”

The Bipartisan Policy Center and Alliance for Securing Democracy have released a joint report. Here’s the boldface passage from its recommendations:

“To improve the task forces’ effectiveness and encourage the protection of election workers, the DOJ should release additional guidance for local law enforcement, FBI’s field offices, and others who work on the front lines of elections that shows how federal laws can be used to deter threats and hold those accountable who threaten election officials.“

NPR’s Hansi Lo Wang reports on “the Trump administration memos and emails [that] were disclosed by lawmakers following a more than two-year legal fight that began after Trump officials refused to turn them over for a congressional investigation.”

Washington Post summary of the evidence so far, yielding this “stark conclusion: It was Donald Trump himself who repeatedly set the nation on the path to violence in the weeks after he lost reelection.”

Happening now. The Hill has live video.

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