Three senators in the Democratic caucus – Angus King, Dick Durbin, and Amy Klobuchar – have released a discussion draft of their proposal to reform the Electoral Count Act, which they dub the Electoral Count Modernization Act. A separate bipartisan group of senators led by Sen. Susan Collins (R‑ME) is also still reportedly working on their version. The Democratic majority staff on the Committee on House Administration released their own study about ECA reform, which I reviewed here with my colleague Thomas Berry.
In its broad strokes, the draft ECMA aligns with what many experts have been advocating, including here at Cato. The centerpiece of the legislation is creating an exhaustive list of valid grounds for objections in Congress to a state’s electoral votes. This is the most important step in putting an end to the confused and unconstitutional idea that Congress has a blank check to throw out votes for any reason it chooses. It is not Congress’s job to judge the underlying conduct of the popular election in each state, and the ECMA draft gets that firmly right.
Much of the ECMA draft is devoted to laying out, in great detail, the process for states to certify their electors and what happens if a state refuses to comply with a final court determination. On this, the draft is possibly overcomplicating matters, creating several new causes of action in federal court and specifying procedures the states must follow in greater detail than is necessary.
These causes of action would need to be more narrowly tailored in terms of who has standing in order to survive the strict limits of Article III’s Case or Controversy Clause. A narrow provision to request a federal court injunction if a rogue governor or secretary of state refuses to certify the results is probably a good idea, if the ability to sue over that is limited to the candidates who can argue they’ve really won the state. But in general, the courts already have ample jurisdiction to hear and decide disputes about who won the popular vote in each state (and thus whose electors are to be appointed). In some instances, the draft allows a federal court order to be sought by any presidential candidate on the ballot, and in one case, by simply any person. Both are probably broader than Article III standing would permit, and the latter is much broader than permissible under well-settled standing jurisprudence. It’s also possible that a write-in candidate who did exceptionally well might have standing, if they arguably won the state, but they would be excluded under this proposal.
The discussion draft also allows for the possibility that both a state’s governor and the designated backup option, the chief elections officer, refuse to comply with court rulings and issue the necessary certification. Consider this the “Kim Davis” scenario: flagrant defiance and contempt of court. In that case, the ECMA would have Congress accept the federal court’s own ruling as sufficient certification. This is understandable but raises constitutional problems. Electors must be appointed by the state. A federal court can coerce a state and its officers to comply with its constitutional duties, but a federal court can not itself act as though it is the state. A better alternative for this admittedly unlikely scenario is to allow the court the discretion to find other suitable state officers to enjoin, including potentially civil servants. It is important to address the possibility of a rogue governor and designating the backup option in the chief elections officer is a good choice. But what happens if both refuse needs more careful consideration to stay within the bounds of the constitutional structure, under which states and only states can appoint electors.
The ECMA draft also has a few major points of concern when it comes to congressional procedure.
First, the draft provides two distinct opportunities to challenge each state’s results, once as to the identity of the electors and then separately after that as to the actual votes cast. The current ECA combines those in a single opportunity to object, and I see no reason to split them. This also raises an important practical problem. Each objection requires Congress to divide back into the House and Senate for two hours of debate and a vote. Potentially doubling that raises a disturbing possibility for pure obstruction in order to run out the clock. With 51 slates of electors to consider, it would take, by a conservative estimate, up to six hours for Congress to handle one state if both opportunities to object are used (four hours of debate, plus time to physically move about the Capitol and reconvene twice).
Take a hypothetical worst case scenario where a determined minority wants to draw things out as long as possible, which was the stated strategy of Donald Trump’s supporters last year. The current maximum of two hours of debate per state (plus another hour each for practicalities) would allow Congress to finish before January 20, starting on January 6, even if an objection is made to every single state. If each state can take up to six hours, objectors could easily eat up all the time and then some between the joint session and inauguration day. Working 12-hour days (which is really pushing it for Congress), it would take nearly a month. This is far too long to finish in time before the constitutionally mandated deadline for the expiration of the president’s term at noon on January 20. There is no great practical benefit to separating objections to the electors from objections to the votes; they should stay combined as they currently are.
The possibility of delay past January 20 would not merely cause the embarrassment of a president taking office late, with an awkward acting president serving for a few days in the interim. It also sets up a potentially catastrophic dispute under another long-neglected and constitutionally problematic law, the Presidential Succession Act, with its disputed interpretation about whether the speaker of the House or the secretary of state should be first in line. Above all else, Congress should strive to finish certification by January 20 and not leave an opportunity for a recalcitrant minority to delay things longer than that.
Another problem is that the ECMA draft sets up a conflict with the 20th Amendment. As we’ve previously discussed here, Congress is properly supposed to handle objections to the constitutional eligibility of candidates for president and vice president. However, that sort of objection must result in a different outcome than simply throwing out the votes. Under the 20th Amendment, the votes must still be counted. If an ineligible presidential candidate has received a winning majority, then the presidency passes to the winner of the vice presidential election. Simply throwing the votes out would instead trigger a contingent election in the House of Representatives under the 12th Amendment. In practical terms, this could make the difference between an ineligible candidate’s opponent being elected and the ineligible candidate’s running mate taking office. The latter is both better policy and what the 20th Amendment requires. Objections to candidate eligibility can be handled through the same procedure as other objections, but this difference in outcome must be specified. [Update: Thomas Berry has explained this issue in more detail here.]
The senators’ draft legislation also includes a novel innovation. It correctly includes a well-drafted provision making crystal clear that the presiding officer (usually the vice president as president of the Senate) has no discretion to halt or alter the procedure. However, this draft goes further and proposes that the vice president shouldn’t preside at all. Instead, the president pro tempore of the Senate would preside, and the vice president would be limited to the minimal job of opening the envelopes as instructed in the Constitution. There is an arguable reading that this is allowable, but it bucks a lot of tradition, and there’s some symbolic value in having the vice president do this job. It’s also debatable if Congress can displace the vice president from his role as president of the Senate even if the vice president doesn’t want to cede the gavel to the president pro tempore. It’s an argument best avoided altogether by leaving the vice president in place and simply making clear he or she can’t pull any funny business from the chair.
One of the biggest problems with the current ECA is the low threshold for triggering an objection: any one representative together with any one senator. Everyone agrees this needs to be raised. The draft ECMA proposes one third of the members in each chamber. This is a very high bar. An argument could be raised that the Constitution allows one fifth of the members in each chamber to request the yeas and nays “on any question.” One fifth would be eighty-seven members of the House and twenty members of the Senate: still a very high bar, and one that the 2020 objections did not clear as to the Senate. While making it much more difficult than the status quo is the correct goal, there’s no need to go so far as to raise this possible constitutional objection.
Lastly, the discussion draft proposes requiring a three-fifths supermajority in both houses to sustain an objection. This is constitutionally and practically problematic. When it comes to rules of procedure for Congress, a statute can set the default, but simple majorities can always invoke the “nuclear option” and pass a new rules resolution by simple majority. If simple majorities in both houses are determined to reach a certain result, the Electoral Count Act can’t ultimately stop them. Wading into the thorny territory of requiring a supermajority by statute could unsettle things, defeating the purpose of providing clarity. The scenario in which majorities of both the House and Senate vote to sustain an objection, but three-fifths is not reached in one or both, invites an ugly constitutional dispute. The desire to ensure some degree of bipartisan agreement is understandable but at the end of the day, the law can only constrain Congress to the degree simple majorities in Congress let themselves be constrained. Given that reaching such majorities would itself be a high hurdle, going beyond that to require supermajorities is unnecessary.
On the positive side, the ECMA draft would move some of the relevant deadlines back, giving more time for the states and the courts to sort out any disputes. The deadline for states to certify their results would be December 20 and the electoral college would meet and vote on December 29, as opposed to earlier in the month for both dates as they stand now. They also propose tightening up the “failed elections” provision to only cover major natural disasters and the like. There are some procedural questions to be raised about how the ECMA draft would do that, but it’s on the right track. The main point of concern is that the draft only lets a federal court make the determination in response to a lawsuit, and says the only acceptable mechanism is to delay the deadline for voters to cast their ballots. Instead, it should be up to the states to decide if their elections have been disrupted by a major natural disaster and what procedures to follow in such a case, and those decisions can then be reviewable in court.
The proposed grounds for valid objections mostly cover any likely scenarios, though a few very unlikely but still possible cases also need to be covered, such as if a state tries to cast the wrong number of votes, or if a certificate sent to Congress is literally fraudulent in that somebody forged the necessary signatures, or if an entity that is not a state at all tries to submit votes. The point of having the list be exhaustive is that it insulates the law from constitutional objections which might arise if the list is too constrained, so it’s important Congress be able to handle any theoretical possible scenario.
On the whole, the King-Durbin-Klobuchar draft is a good place to start for the ongoing discussions and it gets most things right, at least in its intent. Between a maximally aggressive option and a minimalist option, they have opted for the first. That’s not bad, but it could stand to be whittled down a bit. It will be interesting to see what proposal, if any, comes from the Collins bipartisan group, which is expected to be more minimalist. Hopefully, a reconciled version between the two will get it about right, as the Committee on House Administration mostly did in their report. Either way, all of the members of Congress involved are to be commended for taking Electoral Count Act reform seriously and producing thoughtful proposals.
