As Congress works to find a solution for how to fix the Electoral Count Act, one question getting a lot of attention is how to handle the possibility of bad actors at the state level, such as a governor who refuses to certify the state’s election winner.
It’s not an entirely theoretical question. In Arizona and Georgia, there are currently Republican gubernatorial candidates who say they would not have certified Biden’s win in 2020, which the incumbent Republican governors both did. Sen. Mitt Romney (R‑UT) has said that this is a particularly complicated question for the bipartisan ECA working group led by Sen. Susan Collins (R‑ME). Donald Trump’s legal advisors also sought to latch on to a problematic, mistaken precedent from the 1960 election to argue that Congress has a broad power to pick and choose among multiple submissions from the states.
It’s worth keeping in mind that in 2020, the states and the courts all got it right. No state failed to certify the proper winner. No state submitted multiple slates of electors. No state’s legislature attempted to overturn the result. And the courts, in their role adjudicating the proper application of state laws for choosing members of the Electoral College, also passed with flying colors. The primary focus of Electoral Count Act reform is about Congress’s role and the problems it has produced, not anything the states have been getting wrong.
Having said that, there are some things that can be clarified and strengthened when it comes to the role of the states and ensuring they comply with their constitutional obligations.
One idea, as reflected in the draft proposed by Sen. Angus King (I‑ME), would create expansive new jurisdictions and multiple new procedural mechanisms for the federal courts to intervene. As I discussed here, this is overcomplicating matters and raises its own murky questions about the Article III jurisdiction of federal courts.
For the most part, courts already have all the jurisdiction they need, including on the complicated delineation between state courts and federal courts. The courts are likewise efficient at determining if there is a valid court order in place on the relevant dates, which is a tricky thing for Congress to define in any great detail.
The appointment of presidential electors is fundamentally an operation of state law, subject to federal constitutional constraints. That state law process includes administrative procedures such as recounts and audits, appeals to the state courts in cases of disputed results, and appeals to the federal courts in cases where federal statutory or constitutional claims are raised. Congress can and should defer to the outcome of this administrative-judicial process.
There is some role for Congress to set a clear default rule about who, exactly, in a state government is supposed to certify the electors. This could be the governor, as the current law has been interpreted, or it could be another official, possibly by requiring the states to determine in advance who will issue their certifications. But in practice, this will rarely matter if Congress has also committed to deferring to the courts in cases where the courts have already ruled.
That leaves two potential problems to address: the role of the state legislatures and the possibility that a lawless governor or other executive official will simply defy the courts.
For state legislatures, the Electoral Count Act should set a firm rule based on the constitutional bifurcation that lets state legislatures determine the manner of choosing electors but gives Congress the power to set the time for choosing electors. How electors are chosen is up to the state legislatures (and all states have chosen to do so by popular election). But the deadline for this decision and to implement the method chosen is election day, set in federal law by Congress. Everything after that is merely carrying out the process of state law as it stood on that deadline. A state’s legislative power over a presidential election ends on the day the voters go to the polls, and state legislators as such have no further role. It would not be legitimate for a state legislature to convene in December or January, as some advocated in 2020, to pick their own electors instead of respecting the outcome of the popular election. A reformed ECA should provide that Congress will flatly ignore any such attempt, except under narrowly defined exceptional circumstances such as a major natural disaster disrupting the election.
When it comes to governors and other state executive officials, a new federal judicial mechanism might be appropriate, but the need for it is very narrow. The Constitution contains an affirmative duty the federal courts can enforce: each state shall appoint electors in the manner directed by the legislature. The role of state executive officials here is purely ministerial: to issue the certification paperwork to the winners as determined by the popular election results and the outcome of any appeals through the courts.
If a governor refuses to comply (including if the governor attempts to certify a defeated candidate’s electors), the federal courts should have a clear statutory power to issue an order instructing the governor to complete their ministerial duty and to certify the duly determined winners. If the governor still refuses to comply, the court should have the option to find another suitable state officer who will, such as the head of the elections agency or the secretary of state. If necessary, the federal court can keep going down the pecking order however long it takes to find a state officer who will comply under threat of contempt of court. In this case, the federal court would not be impinging on state autonomy. Rather, it would be upholding the integrity of the underlying state law against a rogue executive who is not following that state law and, in the process, is also violating the federal Constitution.
It is important to note that although the federal courts can compel a state to follow the law, the federal court can not ultimately issue the certification itself. The Constitution requires states to appoint electors and the federal courts are not states. However, giving the federal courts flexibility to find a suitable state officer would obviate any need for a certification issued solely by the court.
Congress should accept the certificates issued in compliance with such a court order and reject any alternative submissions as invalid. A governor should not be able to send in fake electoral votes and force Congress to count them even after courts have already ruled against it. There should be a mechanism, if needed, to compel the state to issue the proper certification, and to make clear there is no one person who can be a bottleneck and stop the process. This is the biggest weakness with the current ECA on this question, because it exclusively relies on gubernatorial certification and provides no clear backup option. Congress could also provide for an expedited process, such as a three-judge panel with direct appeal to the Supreme Court, rather than the usual procedure of starting in district court. This isn’t strictly necessary, but it might streamline things when time is of the essence.
This rule can be codified into a reformed Electoral Count Act, both as a provision limiting Congress’s role and to clarify that the federal courts do have this power. As a last resort, if invalid votes somehow reach Congress during the joint session, a valid grounds for objections should be that the certification was issued in defiance of a court ruling in effect at the time and which has not since been withdrawn or overruled. But if the rest of the procedure up to that point has been soundly designed, such invalid certificates won’t need to be considered by Congress at all.
Otherwise, the courts at both the state and federal level already have all the authority they need to reach a determination as to who really won a state’s election and thus who has been appointed as the state’s real electors. Congress should respect that existing authority, its solid grounding in the Constitution’s text and structure, its reliable track record, and the binding outcomes it produces. This final administrative-judicial determination should be made no later than the day the Electoral College meets and votes, well in advance of the joint session of Congress where the electoral votes are counted.
The Electoral Count Act should cover a narrow range of other scenarios where Congress might have to make a substantive decision, such as presidential eligibility requirements. These judgments concern not who the electors are but rather if the electors have cast constitutionally valid votes. But sorting out who a state has chosen as its electors is something for the states and the courts to determine. When it comes to checking bad actors in the states, ECA reform should simply strengthen and re-enforce this existing structure and close off any suggestion that Congress has the power to ignore it.
