The Proposed Replacement for the Electoral Count Act is Probably Worse than the Status Quo
by Neil H. Buchanan
Last week, Professor Dorf and I wrote somewhat-conflicting assessments of the bill that would amend/replace the 1887 Electoral Count Act (ECA). We both certainly agree (as does almost everyone) that the ECA is a mess and needs to be replaced. It is, after all, a big reason that there is so much uncertainty about what happens when competing slates are sent to the Electoral College from the same state; and the miasma that the ECA creates was what Donald Trump's lawyers used to try to pull off the bloodless part of their coup plot.
Even though the ECA is terrible, I should state clearly that there is simply no way that that law -- even in its disastrously muddled current form -- justifies what John Eastman said it justifies. And any replacement to the bill should be understood not to be immune to such bad-faith misreading. Even so, there is an important question about the proposed replacement, which boils down to the classic question of whether it is a net plus or a net minus. Should people who might oppose it suck it up, lest they allow the perfect to be the enemy of the good; or should people who support the bill abandon it, because even a bad law can be made worse?
I come down on the "net worse" side, but I concede that reasonable minds can differ.
Professor Dorf argued that there are good things in the bill and that the key provisions are constitutional, even if the Court (disastrously) ends up endorsing the Independent State Legislature (ISL) theory that Republicans are desperate to use in future elections. I agreed with almost all of that, but I did offer two objections, one political and one substantive.
The political concern was that the bill will not in fact pass, both because there are only nine Republican co-sponsors in the Senate (and they might not find the needed tenth) and because Senator Joe Manchin might walk away: "[T]here is every reason to believe that nominal-Democrat Joe Manchin will back out at the last minute. Why? Because inflation, maybe. Who cares why? Manchin is as Manchin does." Well, with Manchin having shocked everyone yesterday by agreeing to support a bill that includes meaningful provisions to mitigate climate change (and that even includes some progressive tax provisions), it is now at least possible that he will not always play Lucy pulling away the football from Charlie Brown. I will still bet on Manchin to disappoint most of the time, but clearly the odds must now be updated.
What about the substantive concern? The key issue that seems to make even skeptics somewhat optimistic about the ECA update is that it would make clear that a state legislature must abide by the laws that exist on Election Day, which means that a rogue Republican-dominated legislature could not pass a law the day after a presidential election saying, "Our voters just voted for the Democrat, but the US Constitution gives us the power to determine our state's electors, and we hereby pass this new law to allow us to ignore them and choose the Republican slate."
My response to that limitation -- which admittedly seems to address a real problem -- is that it could easily be evaded in advance of an election. Easily. As I sketched it out in my column last week, using Georgia as an example, a state could pass something like this: "This state's electors will be awarded to the presidential candidate who wins a certified majority of the statewide popular vote, unless there is evidence of [fill in the vague language of your choice re 'election integrity']," at which point "the people's elected representatives will convene to determine whether that evidence threatens the public's confidence in the outcome of the Peach State's elections; and if so, the legislature will exercise its best judgment to award electoral votes to the true winner of the election."
Yesterday, Professor Laurence Tribe brought to our attention a debate among legal scholars and others regarding whether the ECA replacement bill is flawed but a net improvement, or worse than nothing. The substantive objection that I described above is not directly relevant to that question, because even if I am right, the new bill might not make matters worse. It would simply be inadequate to stop the crazies from getting their way.
It is worth noting that passing a bill is not easy, and once one is passed, it becomes highly unlikely that it will be "fixed" soon or that a better bill could be passed quickly. If we are stuck with the first thing that comes out of this process, we should hope to get something more than a bill that merely does not make matters worse. If the public is told that "an important election law reform" bill has passed, they will believe that it actually did something positive. So there is a genuine downside to passing even a nothing bill.
I am, however, now mostly convinced that the new bill is in fact a net negative, based on a persuasive piece by Marc Elias that was published last week on Democracy Docket. Although there are several elements to his argument, I will focus here on his criticism of the bill's proposed language "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.'"
Elias then notes that a super-MAGA swing-state governor like Doug Mastriano (if he wins in PA) or Kari Lake (if she wins in AZ) -- or, I would add, a chastened Governor Kemp in Georgia -- "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." He then makes some excellent points about the bill's compressed process and timing of court review, which would make challenges to that "conclusive" determination difficult if not impossible.
Bob Bauer and Jack Goldsmith make a game attempt to respond to such concerns on Lawfare. They try to negate the "conclusive" problem by relying on the bill's expedited judicial review (which Elias has shown is actually part of the problem) and the idea that rogue governors would be bound by their states' pre-election laws: "[The proposed bill] 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."
That defense, however, merely circles back to my critique, specifically that it is possible to write laws before the election that would empower governors to pretend that they are ignoring voting results for some purportedly valid -- but made up -- reason. Giving such declarations "conclusive" effect, only reviewable by stacked federal courts on absurdly tight timelines, could indeed be worse than what we already have.
In short, I think that there are well-meaning people who are overly optimistic about the ability of a federal law to rein in rogue governors by saying that no one can "change the law" after the fact. But it is all too easy for state-level Republicans to enact bills well before an election that would look bloodless and uncontroversial on the surface (guaranteeing little or no pushback) but that contain the hidden cheat codes needed to do their worst after the fact without seeming to change the law at all.
There is much more to say about this debate, but my time today is short, so I will leave it at that. I hope that everyone has a peaceful and safe weekend.