NBC News reports that the Senate’s bipartisan election law working group, led by Sen. Susan Collins (R‑ME), continues to make progress on a possible proposal to reform the Electoral Count Act. As the January 6th committee hearings get underway, the urgency of reforming the ECA is back in the spotlight. Here at Cato, my colleagues and I have spent the past several months studying this issue and making a number of recommendations on how to reform the ECA, which governs the casting and counting of Electoral College votes. In our view, ECA reform is the single most important thing Congress could do to avoid a repeat or worse of the 2020 election crisis.


There is already broad bipartisan agreement on some things, such as clarifying the ceremonial role of the vice president and raising the number of members of Congress needed to trigger a debate and vote on objections. Other aspects of the ECA are trickier. One particularly dysfunctional part of the current law is the so-called safe harbor provision, 3 U.S.C. §5. It’s understandable that this muddled section is reportedly one of the biggest remaining hurdles for legislators trying to reach agreement. 


The safe harbor rule was intended to provide a kind of incentive to state governments, encouraging them to create a mechanism for deciding disputed elections under state law and in a timely manner. It might seem obvious that every state should have a legal process for resolving election disputes, and indeed today every state does. But that wasn’t always the case in the 19th century when the ECA was written. The intended reward for states working out how to solve their own election disputes is that Congress will accept the outcome, which the safe harbor provision says “shall be conclusive” so long as the states get it done at least six days before the Electoral College meets. That’s the theory. In practice, it hasn’t worked out that way.

The safe harbor section of the ECA is unclear on what, if any, types of congressional objections it actually precludes. It does not clearly recognize the distinction between an objection to the validity (or timeliness) of who a state has appointed as its electors, as opposed to all the possible ways in which validly appointed electors can still cast constitutionally invalid votes. This confusion is a theme that runs throughout the current ECA. It’s a large part of what makes the law so difficult to interpret and follow. 


It helps clarify matters to remember that there are actually two certificates necessary from each state for Congress to conduct the electoral count. This is in line with the principle that presidential elections are a two-stage bifurcated process, where the states pick the electors and then the electors pick the president (and vice president). The first certificate needed is from the state government, naming the individuals it is appointing as the state’s members of the Electoral College (in every state, that means the party slate that won the state’s popular election for president). The second is the certificate of the electoral votes cast, which is made and transmitted by the electors themselves when they formally meet in their state capitals and vote as provided by the Twelfth Amendment. Congress needs both of these certificates, and for the names on them to match, in order to properly count the correct electoral votes from the correct electors. 


The certificates of appointment are issued pursuant to state law governing how electors are chosen, and that means determining who won the state’s election. It is this part of the process where disputes should be litigated through the courts, prior to when the Electoral College meets, and Congress should play no role other than to accept the outcome. In this regard, the safe harbor deadline offers nothing more than what the Constitution already requires. The states appoint electors and the final outcome of that state law process is determinative. This includes federal courts deciding any federal constitutional claims raised against the states, such as under the Fourteenth Amendment’s Equal Protection Clause. But Congress plays no role in the matter. The conclusive certificates of appointments should come to them simply as an established fact, not something for members of Congress to debate and vote on. 


The certificates of votes, on the other hand, involve certain rules that do legitimately fall to Congress to enforce during the electoral count. These include, for example, that electors can not hold any federal office, and that the electors may not vote for candidates for president and vice president who are both residents of the elector’s state. With regards to these rules (which ECA reform should clearly enumerate), it would be illogical and unconstitutional for Congress to cede its necessary authority just because an elector’s appointment was timely. The fact that an elector was appointed on time doesn’t mean they can ignore the Constitution’s rules regarding how and for whom they can vote, as well as who is categorically ineligible to be an elector.


The courts are not well-positioned to intervene at this stage and pass judgment on how the electors voted or who they voted for, or in other words, after the Electoral College has already met. The Constitution makes this clear by establishing that the vote certificates are to be sent to Washington, DC “sealed” and sight unseen until the envelopes are opened by the vice president in the presence of the House and Senate. It’s then up to Congress to count the votes, applying a very narrow list of constitutional requirements which, if violated, render an electoral vote invalid and not to be counted. 


In practice, states’ meeting the safe harbor deadline has not stopped Congress from considering challenges to the validity of their elector appointments. All of the objections raised in the 2020 election fell into this category. Republican members of both the House and Senate alleged that the lawfully appointed Biden electors from several states were not actually lawfully appointed, even after the state governments and every court to hear the matter had affirmed otherwise. If the safe harbor provision means anything, these objections should have been ruled out of order because the states had conclusively decided the question prior to the safe harbor deadline. But the objections weren’t ruled out of order. Instead, Congress debated them (twice, as to both Arizona and Pennsylvania) before both chambers voted to reject the challenges. 


The safe harbor provision’s promise that a state’s timely certification of its electors “shall be conclusive” isn’t so conclusive after all. Even though they ultimately reached the same result, Congress hasn’t been keeping up its end of the bargain under the safe harbor provision. That’s because this part of the law is woefully ambiguous and contradicts other parts of the Electoral Count Act (3 U.S.C. §15) spelling out how and on what grounds objections can be made.


While Congress has neglected to follow the safe harbor provision, the courts have also struggled to understand it. Most famously, the Supreme Court treated the safe harbor provision as establishing an implicit deadline for states to certify their electors. On that basis, in the 2000 election the court halted the Florida recount because it could not possibly be completed in time to meet the safe harbor deadline. But the law doesn’t actually say that states must meet the safe harbor deadline, and in many cases Congress has accepted certificates that did not.


There’s a more practical timeline consideration at stake, too. There’s no real need for states to finalize their elector appointments so far in advance of when the electors meet. The safe harbor deadline is currently just five or six weeks after Election Day in early November. In addition to moving the Electoral College meeting later, such as to late December or early January, scrapping the six day gap created by the safe harbor provision would help make sure the courts have sufficient time to decide any relevant litigation. It’s an opportunity for Congress to correct not only the ECA flaws made apparent in the 2020 election, but also a problem that played a big role in creating the perception that the courts were too rushed to properly handle the disputed 2000 election. 


NBC reports that the Senate working group is considering a number of options for what to do with the safe harbor section: 

Senators in the working group are exploring three options to resolve confusion around safe harbor provisions, said a source who described it as the main sticking point.

The first is to replace the “safe harbor” concept with a clear federal duty for the relevant state official to send timely certification to Congress under the 12th Amendment.

The second is to replace safe harbor provisions with new laws making it clear that Congress can identify the state official lawfully tasked with establishing a state’s electors.

The third is to preserve the safe harbor concept and tell states that to qualify for the presumption that their submitted electors are conclusive, they must notify Congress before Election Day which official is responsible under state law for sending electors.

Senators are also exploring whether there should be a role for federal courts to step in and resolve disputes or for challenges pertaining to state-submitted electors.

The first of these options is both practically and constitutionally the best choice. ECA reform should eliminate the safe harbor provision altogether. It is unnecessary, illogical, isn’t followed in practice, and everything it is intended to accomplish can be done more effectively through other, better mechanisms. 


In line with the Constitution’s mandate that “each state shall appoint” electors, it is appropriate to have a clear federal court remedy to enforce this federal constitutional obligation. Congress should affirm that it will accept what the states and the courts decide. The courts are the proper venue for litigating the state law and constitutional questions at stake to determine who really won a state’s election and thus who has been appointed as its members of the Electoral College. Congress’s proper role in the electoral count is much narrower and it does not include deciding state election outcomes. The safe harbor provision muddies that distinction, and Congress should get rid of it.