Let’s begin with the obvious. The Electoral Count Act of 1887 (ECA) is outdated and needs reform. It is an archaic law that sets the rules for how presidential electors are certified and counted by Congress. Key parts of the law are vague, imprecise and potentially unconstitutional. Reforming this law has been on the agenda for pro-democracy advocates for more than two decades — since the close presidential election in 2000. For most of that time, Republicans showed little interest.
That is until now.
Nine Republicans led by U.S. Sen. Susan Collins (R-Maine) and seven Democrats led by Sen. Joe Manchin (D-W.Va.) have unveiled their bipartisan legislation to reform the ECA. Nine is coincidentally one fewer than the minimum number of Republican votes needed to overcome a filibuster.
The Electoral Count Reform and Presidential Transition Act, as the new bill is called, seeks to address many of the previously identified shortcomings of the ECA. The legislation makes clear that the vice president’s role in counting electors is merely ceremonial, bars state legislatures from changing the rules after Election Day when it comes to selecting electors and raises the threshold for members of Congress to challenge the election results. The new bill also addresses some more modern concerns — such as what happens if there is a vacancy in the Electoral College or if a natural disaster postpones Election Day.
If this is all the new bill accomplished, it would be uncontroversial and one very much worth passing.
However, the proposed legislation aims to be more ambitious, and the result is a bill that — in its current form — is not ready for enactment. Lacking precision in critical areas, the bill feels less like the product of legislative compromise and more like something constructed in a law school faculty lounge. And it is impractical in ways that practicing lawyers would recognize, but Washington think tanks might ignore.
As someone with extensive experience in voting rights and post-election litigation, I evaluate a new election law based on whether it will improve the prospects of free and fair elections or worsen the current state of democracy in real, if not so obvious, ways. After reading the text of this bill, I am not convinced the current draft passes this test.
At the heart of my concern with this bill is the requirement that at least six days before the Electoral College meets, each governor must submit a “certificate of ascertainment” identifying their state’s presidential electors. According to the new bill, that document is “conclusive with respect to the determination of electors appointed by the state.”
Conclusive is a very strong word. Typically, in legal construction, a fact or piece of evidence is conclusive when it is settled and cannot be contradicted by other facts or evidence. For decades, the U.S. Supreme Court has reasoned that if something is conclusive, it is “incapable of being overcome by proof of the most positive character.”
Under such an interpretation, the declaration by a governor that a Republican presidential candidate received more lawful votes than the Democratic presidential candidate could not be challenged even if there was strong evidence to the contrary. If elected this November, a future Gov. Kari Lake (R-Ariz.) or Gov. Doug Mastriano (R-Pa.) could certify the “Big Lie” presidential candidate as the winner even if the best evidence showed that he or she had lost the presidential election. That “conclusive” determination would be the end of the analysis.
Proponents of the new bill will point to another part of the law to support the idea that the governor’s conclusive determination is, well, not conclusive at all. Yet, that provision is a bit of a muddle. It reads:
Any certificate of ascertainment of appointment of electors as required to be revised by any subsequent State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.
You are forgiven if you are confused by this language or feel less than reassured that the current Supreme Court will step in to protect elections from a “Big Lie” governor. It is unclear what “as required to be revised by any subsequent State or federal judicial relief” means. Required by whom? Subsequent to what? Revised how?
I assume, but do not know, that this is intended to foreclose judicial challenges to election results until after the governor signs his or her certification six days before the Electoral College meets. During that six-day span — after certification by the governor, but before the electors meet — it appears the law contemplates that a court may order a new certificate.
As an initial observation, a six-day window would, as a practical matter, block most post-election litigation that requires a hearing to determine disputed facts. There simply would be no time. In some states, this short window could effectively limit even a well-founded recount.
Assuming there is still time for litigation, the bill imprudently favors federal court rather than state court relief. In fact, the only mention of state courts in the entire bill is the fleeting reference in the section quoted earlier regarding “subsequent State or Federal judicial relief.”
The remainder of the judicial review section focuses exclusively on the process and timing of federal court action, a framing that is at odds with how post-election litigation typically takes place. In 2020, 39 post-election cases were resolved in state court. The Bush v. Gore Supreme Court case in 2000 arose out of the Florida Supreme Court, the state’s highest court. Displacing much or all of this litigation into federal court will create uncertainty in an area of the law that already suffers from instability. It will also narrow opportunities for timely relief.
The bill further limits federal court relief by insisting all claims are heard by a three-judge panel. Currently, post-election litigation in federal court starts before a single district court judge. Their decision is then reviewed by a court of appeals (the intermediate court federal level) and is subject to discretionary review by the U.S. Supreme Court, meaning the justices can decide whether or not to hear a case. The proposed bill, however, would require cases involving certification to first be heard by a three-judge panel consisting of one trial court judge and two appellate court judges. Given the way that Republicans have reshaped the federal judiciary, the result will likely be that any court reviewing a close presidential election in 2024 will have a majority of Republican-appointed judges.
Under the new bill, any appeal from this new three-judge panel would automatically jump to the Supreme Court, which would then be required to review the merits of the decision. In the 2020 post-election litigation, Supreme Court review was discretionary. The Supreme Court wisely chose not to accept for review a single case brought by former President Donald Trump or his allies. The new bill would require the 6-3 conservative majority on the Supreme Court to decide the merits of every future challenge that involves presidential certification whether they want to or not.
Despite its preference for federal courts, the new bill fails to provide any legal standard for a court to use to overturn a governor’s conclusive certification. One would hope that a federal court would overturn the results in a particular state if the “Big Lie” governor, for instance, certified the presidential candidate who received fewer lawful votes than the candidate who actually won.
But nothing in this law assures that or even expresses that preference over the conclusiveness of the governor’s certification. A court will be left to wonder what standard, if any, is appropriate to overturn a determination by the governor that federal law says is conclusive. Without any articulated standards in the bill, a federal court could decide that it has no basis to overturn the conclusive determination of the governor for this reason or any other.
The Electoral Count Act of 1887 is undoubtedly outdated and needs reform. However, we must accept that some reforms will make elections fairer and safer and others will create new opportunities for mischief and election stealing. Congress has the authority to make changes and enact a law that will improve the ECA to safeguard free and fair elections. Unfortunately, the Electoral Count Reform and Presidential Transition Act is not that law.