Published by The Lawfare Institute
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The Electoral Count Reform Act (ECRA) recently introduced by a bipartisan group of senators is an exceptionally promising development in our polarized era. It has been apparent for a long time that the Electoral Count Act (ECA)—the 1887 law designed to ensure that presidential elections operate with integrity, and that this bill would replace—is flawed. These flaws were on full display during the counting of electoral votes in 2020-2021, but all of the flaws had historical precursors.
The ECRA addresses and resolves these flaws in thoughtful ways that should—as they did within the group that produced the bill—attract bipartisan support in Congress. The bill gives full effect to state laws governing presidential elections that are in place on the date of the vote; eliminates (to the extent possible through legislation that rests on a strong constitutional foundation) the tools available to rogue actors to disregard the results of those elections after the fact; imposes duties on state officials and judicial review processes that serve as meaningful and effective checks should rogue actors nevertheless attempt to disregard or cast aside election results; and narrows congressional prerogatives to disregard legitimate electors chosen in state elections. In short, the bill helps to ensure that the president and vice president are chosen by the voters in accord with the state law that governed the election, and not via postelection manipulation—in Congress or the states—of the presidential elector process.
There will doubtless be reasonable proposals in the weeks ahead for changes to strengthen or clarify provisions of this draft. It will be important to distinguish those proposals from misguided criticisms of the core design. In the last days, amid the widely favorable reception of the bipartisan group draft, we have seen the emergence of such criticisms as well.
Of course, the bill could have been written differently. Our own proposal, developed with a group convened by the American Law Institute, differs in several respects from the bipartisan draft bill. Yet in the end, any ECA reform requires choices among alternative approaches that are constitutionally grounded, responsive to concerns on both sides of the aisle, and workable in the concrete context of future electoral conflict. The aim here should be to craft a well-constructed improvement over existing law that can pass. Against this standard, it is difficult to imagine a more skillfully designed answer to the basic design challenge of ECA reform than the one produced by the bipartisan group.
In what follows we list some criticisms of the bill to date and explain why we think they are overstated, misplaced, or can be addressed with minor tweaks to the bill. We first explain how the bill preserves state authority over the manner of presidential elections but prevents states and state officials from changing the rules of the game after the election. We then address the misconceptions about the bill’s provisions for expedited federal court review. Finally, we analyze what the bill does for Congress’s power in counting electoral votes.
(Our analysis builds on the excellent work in the past few days by (among others) Matthew Seligman (see here, here, here, and here); Protect Democracy; Andy Craig; Derek Muller; Ned Foley, Michael McConnell, Derek Muller, Brad Smith, and Rick Pildes; and Henry Olsen. We urge interested readers to consult these analyses for more detail and additional arguments.)
Article II of the Constitution gives each state the authority to determine the “Manner” for appointing presidential electors but also specifies that Congress has the authority to “determine the Time” for choosing electors. A major concern about the current ECA is that it would allow a “rogue governor” or other state official to manipulate or alter the electors chosen on Election Day by the voters. A major goal of the Electoral Count Reform Act is to prevent this illegitimate manipulation of the presidential election process.
Criticism: The ECRA would empower rather than curtail rogue state governors.
This is manifestly incorrect. One of the most important accomplishments of the ECRA is to make clear that the governor must certify electors “in accordance with the laws of the State enacted prior to election day.” This core provision is respectful of the state’s power over the manner of election, but also asserts Congress’s power over timing by making clear that it is the state law in place on Election Day that counts and binds state actors. This timing proviso is a major check on state officials’ manipulation of presidential electors chosen on Election Day.
The ECRA additionally provides that a “certificate of ascertainment” of a governor (or such other state official as identified as responsible for certifications by state constitutional or statutory law) is “conclusive with respect to the determination of electors appointed by the State.” There are two reasons for this provision.
First, the ECA now imposes a responsibility on “the executive of a State” to certify electors but does not establish when such a certification must occur, creating unnecessary ambiguity. Second, existing law does not specify which state executive must issue a certification. Most states have split executive branches, with chief election officials (e.g., secretaries of state) who are separately elected. Under current law, dueling certifications—one from a governor, another from a secretary of state, perhaps still another from an attorney general—could end up being presented to Congress for counting, without a clear process to determine which certificate is legitimate.
The ECRA addresses these problems. It does so by identifying a single official—the governor or another official responsible for certifications under state law—who is subject to the federal law duty to issue and transmit the certificate of ascertainment. It prohibits that official (or any other state official) from certifying that the wrong candidates prevailed in the state’s election since that outcome would not be consistent with state election law in place on the date of the election (including state laws governing the postelection process, as of the date of the election).
The ECRA also subjects these decisions to expedited judicial review. First, the governor or specified state official must answer to the state court system, where he or she would be subject to judicial remedies to enforce state law. (As discussed below, statements that the ECRA would displace or eliminate state court review are unfounded.) Second, the ECRA provides venue for a federal action to ensure compliance with the law in place at the time of the election (which is explained further below). In addition, unlike current law, the ECRA places deadlines on the governor or other executive official’s behavior. Certification must occur six days before the Electoral College meets, not at some undefined time; and an expedited judicial process may occur thereafter, to ensure resolution before the Electoral College meets and electors cast their ballots.
In short, one of the core accomplishments of the ECRA is that it addresses the “rogue governor” scenario that so many people rightly worried was a serious possibility under the ECA. It is a misrepresentation of the ECRA to suggest that it would empower rather than curtail rogue governors.
Criticism: The “catastrophic event” provisions allow for rogue state legislative action.
Section 2 of the ECA provides: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” This provision, which authorizes the state legislature to appoint electors after Election Day based on an undefined failure “to make a choice” on Election Day, is an open invitation to all sorts of state legislative mischief in response to electoral vote outcomes that the state legislature dislikes. Indeed, this specific language in the ECA was a key part of efforts to persuade state legislatures to overrule the popular vote in their states in 2020.
The ECRA wisely eliminates this provision. In its place it defines “election day” to include a “modified period of voting” that is “necessitated by extraordinary and catastrophic events as provided under the laws of the State enacted prior to” Election Day. This is a significant improvement for two reasons. First, it removes any federal law authorization for a state legislature or any other state body to do anything new after Election Day to change the outcome of the popular vote. The ability of a state to extend or alter the time of voting is strictly limited in accordance with the state law in place at the time of the election.
Second, it provides relatively narrow grounds for extending or altering the time of the election to “extraordinary and catastrophic events” in accordance with state law on the date of the election. What that law is will differ from state to state. The ECRA is not the place to catalog what may be catastrophic events (e.g., a cyberattack, widespread power outages), which instead are properly left to state determination. The important point is that the combination of the limiting phrase “extraordinary and catastrophic,” and the limitation of the remedy to modifying the voting period, means that states cannot sweep in “fraud” and related ideas as a triggering event to alter the outcome of the vote.
Federal Court Review
Another major innovative feature of the ECRA is to guarantee that a federal court can ensure that state officials send the proper slate of electors to Congress and, relatedly, that Congress only receives one slate of electors and that that slate will be lawful. The ECRA does this by establishing that “Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the” governor’s issuance of a certificate of ascertainment of appointment, and the transmission of that certificate, is subject to special venue rules and expedited review. The venue rule provides that such action shall be heard by a three-judge panel in the federal district court in the state in question. The expedited procedure is that the court shall “expedite to the greatest possible extent the disposition of the action” and that any appeal “may be heard directly by the Supreme Court … on an expedited basis.”
In addition to these provisions, the ECRA states that “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 the ECRA. In simpler terms, any certification that is revised by a state or federal court will take the place of any other certifications. As noted, the ECRA also states that “[t]he determination of Federal courts on questions arising under the Constitution or laws of the United States with respect to a certificate of ascertainment of appointment of electors shall be conclusive.”
This part of the bill has drawn four basic objections.
Criticism: The provision allowing for judicial revision of a gubernatorial certificate is ambiguous concerning the grounds on which such relief may be granted.
The ECRA does not expressly state the grounds on which a certificate of ascertainment may be “required to be revised by any subsequent State or Federal judicial relief granted prior to the date of the meeting of electors.” Primarily, this is because a full articulation of the bases on which such a revision may be required would require the canvassing of 50 state laws.
The most likely reason why a certificate of ascertainment may be revised is because the governor issuing it has disregarded state law governing the postelection process. Any such illegality will be actionable in state court, though the precise nature of the illegality and the cause of action to remedy it will differ from state to state. In addition, the ECRA mentions actions brought under federal law “with respect to the issuance” or “transmission of such certificate.” In such an action, rogue gubernatorial action would be measured against the ECRA’s commands that the governor has a federal duty to issue a certificate of ascertainment in accordance with the state law at the time of the election, and with First and Fourteenth Amendment rights requiring the popular vote of the state to be given effect. As Bush v. Gore stated: “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental .... Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
Under current law, the effect of a judicial remedy on a rogue gubernatorial certification is unclear. The ECA assumes that the state executive will follow the “final determination of any controversy or contest” concerning the presidential election, but it provides no guidance as to what occurs if the state executive chooses not to do so. This assumption of good-faith conduct is no longer sound. And yet under the ECA, if a gubernatorial or other state executive certification is determined to be unlawful by a state or federal court, that determination may be given effect only if both houses of Congress agree. The ECRA fixes this problem by having a federal court identify the right slate conclusively and ensure that only the right slate reaches Congress. Against this background, the nonspecification of the bases for relief is a good thing. Specifying limited bases for relief might give rise to expressio unius exclusio alterius arguments—that is, unless the basis for relief is specified, it would not be available.
Criticism: The provision for special venue and expedited judicial process displaces state litigation over recounts and challenges, and requires them to be heard in federal court.
This is simply not true. The ECRA does not in any way displace state law processes for recounts, challenges, or postelection litigation. Quite the contrary: It locks in those processes, as of Election Day, and requires that they must be followed. Indeed, the ECRA’s contemplation of revision of the certificate of ascertainment in light of state judicial relief expressly assumes that state law judicial processes will continue as before.
Nothing in the federal court review provisions affects this conclusion. Those provisions do not in any way affect state law election processes. Rather, they simply establish venue and expedited review for a very narrow lawsuit brought under extant law by the presidential and vice presidential candidates to challenge a governor who fails to issue a certification (or issues the wrong one). And the judicial review provision in the bill explicitly states—twice—that it is limited to actions brought by presidential and vice presidential candidates under federal law.
Under the ECRA, any federal claim concerning a governor’s failure to certify or erroneous certification must be heard by a three-judge panel as expeditiously as possible, with an appeal resolved by the Supreme Court “on or before the day before the time fixed for the meeting of electors,” that is, five days after the certification deadline. Critics say that this timeline is too short for the federal courts to complete their business.
These criticisms glide over the complexity of choices that any ECA reform must make in structuring postelection processes that operate on an unavoidably tight timeline. Experience shows that federal and state courts recognize the need to respond to legal claims over the compressed period from Election Day to the date that the electors meet. They will hear these cases and issue rulings on a highly expedited basis—in a matter of days, especially on a challenge to the legal basis for certification, which is narrow in nature. Moreover, in many cases, the controversy over certification will have arisen before the state executive has formally acted to issue a certificate subject to challenge or to refuse to issue one, and so the lawsuits may be ripe days before the final date for executive action (or inaction).
There are also other related timing considerations that affect the period available for judicial review of these certification challenges. The House and the Senate need time to prepare for the Jan. 6 joint session. At the same time, if Congress were to move the date of the required certification earlier while holding constant the mid-December date of the Electoral College vote, the results could give rise to unnecessary tension between the ECA, on the one hand, and existing state procedures, on the other. Certain state postelection procedures could take most or all of the month of November (e.g., Michigan, Pennsylvania, Wisconsin). It would be unwise and likely to introduce additional confusion and uncertainties to force a gubernatorial certification in the middle of unresolved election recounts and challenges over the very vote count they would be certifying.
Congress certainly could, if it wishes, provide for a few additional days for these challenges to be brought and considered by, for example, moving the meeting of electors to a later date. A related issue is that the three-judge panel convened pursuant to 28 U.S.C. 2284, as the ECRA contemplates, requires five days’ notice if a state official is a party to the suit (which is likely, as a rogue governor is a likely defendant)—see 28 U.S.C. 2284(b)(2). That delay would eat up the entire review period. Congress could simply shorten or eliminate this notice period for cases brought under the ECRA’s special procedures. These changes, however, would be technical adjustments and the criticisms based on these timing issues do not put in question the basic design of the ECRA.
Criticism: Mandatory Supreme Court review is unwise because it requires the Court to decide “every future challenge that involves presidential certification.”
This concern is misplaced for two reasons. First, the Supreme Court will not have to review “every future challenge that involves presidential certification.” It will only have appellate review over the narrow type of action involving especially consequential certification issues for which the ECRA provides venue in federal court.
To put this in perspective: Contrary to the claim that under the ECRA’s provisions the Supreme Court would have been required to hear most or all of the approximately 60 postelection lawsuits filed in 2020, only six of those suits could even potentially have been eligible for appeal under the ECRA, and only two of the suits actually reached a stage at which they could have been appealed. Even as to those two cases, the Supreme Court simply sat on them in 2020 until the election had passed, and nothing in the ECRA would preclude the same result in the future.
Second, if (unlike in 2020) a candidate were to file a meritorious and potentially outcome-determinative suit alleging illegal certification of an election by a state executive, it is inconceivable that the Court would decline to review this narrow but very important type of action in this high-stakes context in any event. So it makes sense for the ECRA to have the case expedited and resolved at the earlier possible date.
The final set of issues concerns reform to Congress’s role in counting presidential electors chosen by the states.
Criticism: The bill does not adequately narrow Congress’s discretion because it allows Congress to reject “true electors” if both houses agree and retains ill-defined grounds for congressional objections.
The ECRA allows both houses of Congress to reject electoral votes if “the electors … were not lawfully certified under a certificate of ascertainment of appointment of electors” under the provisions intended to ensure that the lawful slate, and only the lawful slate, is transmitted to Congress. This conforms the allowable grounds for objections to this core reform objective, and it connects directly to the “conclusive” effects of any federal court relief granted in response to a suit by presidential and vice presidential candidates under the expedited review procedure.
The ECRA also permits congressional objection if the “vote of one or more electors has not been regularly given” (emphasis added). Despite this continuity between the old law and the new bill, the ECRA is a significant improvement. The whole thrust of the ECRA is to ensure that the popular vote is respected in accordance with state and federal law. If there is any legitimate question about the proper slate that emerges from the state vote, state and federal courts will have sorted out the right one before it reaches Congress, and the new venue and expedited procedures in the ECRA will ensure, in any case where there is a question, that the proper slate is certified and transmitted to Congress with judicial imprimatur. Such imprimatur will make it harder for Congress to successfully second-guess the appointment of electors.
As for the term “regularly given,” recent scholarship provides significant evidence that that phrase has a narrow and specific meaning. Any remaining ambiguity concerning the basis for permissible objections is mitigated by the combination of (i) the results of state and federal court litigation and, importantly, by (ii) the ECRA’s increased thresholds for any objections. The ECRA requires 20 percent of the members of each house to sign on to an objection before it is heard, rather than one member from each house, as under the ECA.
The ECRA embodies bipartisan agreement on substantial improvements to the consideration and counting of electoral votes. Many of the criticisms that have been leveled against it are answered by the plain text of the ECRA itself, which anchors clear duties on state and congressional actors in well-established constitutional authority. There may well be room for tweaks or clarifications, but on the whole, the bill is an outstanding contribution to protecting the integrity of presidential elections.