Thoughts on the Electoral Count Act

The House, with the votes of every House Democrat joined by only nine Republicans, has passed the Presidential Election Reform Act. The House bill would amend the Electoral Count Act of 1887 in order to avoid a replay of the challenges brought to certifying the 2020 election. It is rare that anything good comes out of a largely party-line Democratic vote by Nancy Pelosi’s caucus, and there are at least one or two genuine differences between the House and Senate versions of ECA reform on which the Senate should hold the line. Nonetheless, Senate Republicans should push for a prompt vote on the Senate version of the bill with the aim of getting ECA reform enacted into law in this Congress.

The basic structure of the ECA is a good one, giving primacy to the states in determining the winners of each state’s presidential electors, but the 1887 bill’s meandering language is in need of clarification. Both the House bill and the Electoral Count Reform and Presidential Transition Improvement Act (the Senate version) would preserve that basic structure while addressing the ambiguities exploited by Donald Trump in January 2021 (and, to a lesser degree, by Democrats in 2005 and 2017). Both bills would:

Clarify that the vice president’s role in counting electors is ministerial and does not include the power to make unilateral rulings on whether to count a state’s electoral votes;

Significantly raise the number of objectors necessary in order to force a vote on objecting to a state’s slate of electors;

Restrict states from changing their laws for selecting electors after Election Day, with the primary aim of preventing state legislatures from appointing their own electors if they don’t like the results of the popular vote;

Tighten the rules on governors certifying electors and courts resolving challenges, while extending the time for the Electoral College to meet, with the goal of ensuring a swift and certain determination of election disputes before the electors cast their ballots;

Clarify that the only grounds for a state to hold additional votes or to claim that an election was not duly held on Election Day is if the state suffered a catastrophic event such as a natural disaster or terrorist attack that disrupted the vote; and

Require that lawsuits by presidential candidates under federal law be brought in a three-judge district court in the state’s capital in expedited fashion.

There are differences. The Senate bill includes a section on presidential transitions, which the House bill does not. Under the House bill, one-third of each chamber must raise an objection in order to require a vote; in the Senate bill, one-fifth of each house is required. The two bills have different rules for lawsuits before the three-judge court. None of these should be showstoppers that would preclude a conference from resolving differences.

Senate Republicans should, however, draw the line at the provision in the House bill that “no person acting under color of law shall willfully fail or refuse to tabulate, count, or report any vote that is timely cast and is otherwise valid under applicable State and Federal law,” and creates a right to sue to enforce this in a three-judge federal court. This provision would authorize, for the first time, a federal cause of action arising entirely under state election law, thus taking many election challenges out of the state courts and undermining the ECA’s respect for federalism. Moreover, the bill creates no parallel right to sue to stop the counting of legally invalid votes.

The House bill also creates a specific cause of action to allow federal-court lawsuits against a governor for refusing to certify electors — a provision demanded by Democratic Party election lawyer Marc Elias, who has denounced the bipartisan Senate bill. This provision is also broadly drawn, allowing lawsuits against a governor for violating the certification requirement “including by failing to certify the appointment of electors or because the certification does not accurately reflect the final election results of the State as modified by any recount or judicial or administrative proceeding conducted pursuant to State or Federal laws duly enacted prior to” Election Day. We do not object to a narrow rule allowing a federal court to order a governor to certify results once all the state and federal processes for election contests are exhausted — a duty that should be ministerial, and not discretionary on the part of the governor — but if the Senate were to agree to add such a rule to the bipartisan bill, it should insist that it not create a new backdoor avenue to more election lawsuits.

Aside from these disagreements is the question of whether the Democrats are sincere in wanting ECA reform enacted into law at all, rather than giving them a talking point with which to campaign against Republicans as election deniers. The House bill included an unnecessary Trump-bashing preamble seemingly designed to alienate House Republicans; the Senate bill does not.

Moreover, while the Senate bill now has ten Republican cosponsors along with the sponsorship of all 50 Senate Democrats, and could therefore surmount any filibuster, it has yet to be brought up for debate in the Senate. In the spring, President Joe Biden and Majority Leader Chuck Schumer both openly opposed a vote on ECA reform for fear that it would undermine their case for a broader overhaul of voting and elections law, which predictably failed. On Tuesday, Mitt Romney accused Schumer of dragging his feet on holding a debate on ECA reform because he was “looking for a messaging bill to show that Republicans are unwilling to protect our elections process.” The bipartisan Senate group spent months meeting and studying the Electoral Count Act before reaching a legislative agreement to reform it on July 20. Legislative text of the House bill, by contrast, was released on Monday, and Pelosi forced a vote a little more than 48 hours later — bypassing the committee process and ensuring it would get as few House GOP votes as possible.

Romney and other Senate Republican supporters of ECA reform should call the Democrats’ bluff and demand a prompt debate and vote. If Schumer continues to resist, it will be further evidence that Democrats’ professed concern for the integrity of our democratic election process is just another cynical campaign slogan.

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