Will Fixing the Electoral Count Act Avert Disaster?
by Neil H. Buchanan
A proposed bill to reform the Electoral Count Act (ECA) is a response to a few of the many problems with the US presidential election system. Although the ECA has been a disaster in waiting since its passage in 1887, it was only in the 2020 election that it became clear just how vague and ultimately dangerous that law is. After all, Donald Trump's lawyer John Eastman argued that parts of the ECA are unconstitutional and that the other parts could be used to justify the pre-violence part of the Trumpists' planned coup.
Fortunately, that coup attempt failed -- barely -- and the ECA's many holes did not result in a constitutional crisis and a collapse of the American experiment. Having only narrowly avoided that fate, people of good will are now trying to clarify and tighten the statutory language to make it even more clear how the certifying, challenging, and counting of electoral votes must proceed. Eastman was completely wrong, even under the terms of the current ECA, but clarifying the governing law of elections is surely a good idea.
The proposed replacement, the Electoral Count Reform Act (ECRA), is being debated and potentially improved as Congress considers how to proceed. Both Professor Dorf (here) and I (here) have argued that the ECRA has much to commend it, but we have also suggested that it has flaws (and that it might not even pass). On balance, I ended up arguing (here) that as currently written, it might actually make matters worse.
Happily, The Washington Post's op-ed page on Monday featured a new piece by Laurence Tribe, Erwin Chemerinsky, and Dennis Aftergut, "The Electoral Count Act must be fixed. A new proposal doesn’t go far enough." in which they point the way toward making the new law worth passing.
Tribe, Chemerinsky, and Aftergut (TCA) offer a truly excellent, constructive critique of ECRA. After summarizing their points, I will consider whether or how the ECRA (even if it is still imperfect) could avert disaster. But it turns out that, as important as it is to replace the ECA, it is surprisingly difficult to sketch out a scenario in which any of it will matter in a future election. That does not make it a worthless exercise, but it should refocus efforts on where the true vulnerabilities lie in our fragile and threatened constitutional democracy.
TCA offer a bracing sprint through the potential flaws that need to be addressed before Congress considers passing the ECRA. They note in particular the proposed language making governors the "conclusive" certifying authorities for states' electors, which is problematic on its own but is even more worrisome -- and simply confusing -- because the bill makes clear that the governors' decisions can be challenged (and thus are not in fact conclusive). Yet any legal challenges would be forced through the courts on absurdly abbreviated timelines (which TCA tartly describe as "so short as to make meaningful review a mirage").
The ECRA, they argue, also needs to be amended to increase the number of members of each house of Congress needed to stop counting electoral votes on January 6 and to limit the basis for such objections, along with a number of other important points. I was particularly happy to see them include this:
The biggest potential loophole might be the seemingly innocuous provision that 'the laws of the State enacted prior to election day' are decisive when it comes to the legality of a state’s certification of electors.
... But as drafted, the bill’s apparent intent would be easy to circumvent. An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote. Eliminating that way of defying the people’s will is imperative.
This echoed my major objection, which I have offered not only in response to the ECRA but to claims over the past two years that Republican legislatures would be in any way constrained by the laws-in-place-on-election-day requirement (which is also included in the existing ECA). As I will go over again below, evading that rule would be child's play.
Most importantly, TCA end their tour de force by reminding us that "it’s equally vital to remember that not even a perfect way of counting the electoral votes at the tail end of the process can overcome unfair and undemocratic obstacles to casting ballots at the front end."
Quite so. The question is whether they are right to conclude: "For now, however, improving the Electoral Count Reform Act would be a victory to celebrate." I am fairly certain that it would indeed count as a victory, but I would not spend a lot of time at any celebration parties.
Consider an analogous argument. A few months ago, I noticed that a number of liberals have been repeating an incorrect understanding of the Twelfth Amendment, reinforcing the false claim that a future presidential election would be decided by the US House of Representatives (on a one-vote-per-state basis) if a large enough number of electoral votes were tossed out to bring both candidates below the familiar 270-vote target. As Professors Tribe, Dorf, and I argued on Verdict in Fall 2020, that is simply wrong.
When, in April of this year, we tried to get people to change the way they were talking about that constitutional process, I wrote a Verdict column in which I asked, in essence: "Even though we're right about the 12th, would it ever really matter?" In other words, is it worth anyone's time to push to correct this misconception about that amendment? I concluded that there is a path down which we as a nation might one day (soon) walk that would lead us to that fateful point, but I concluded that there were so many ways in which everything could go wrong before then that we might not want to waste our time or resources shoring up a point that will almost surely never come up. (Again: almost.)
This is essentially what TCA mean when they decry the "unfair and undemocratic obstacles to casting ballots at the front end" of the electoral process, which are far more important than the ECA/ECRA issues. But what happens between the front end and the tail?
To begin, recall that the Constitution allows states to choose electors through whatever process they might adopt. Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Leaving aside the insane and dangerous "independent state legislature theory" (which the current Supreme Court might endorse in spite of -- or perhaps precisely because of -- its insanity and danger), there is no federal constitutional requirement for democratic input into selecting the state's electors. It could be done by lottery, by auction, by nepotism, or anything else.
The supposed barriers to adopting a partisan system of choosing electors are: (a) indirect democratic input via the elections of the states' legislators and governors, and (b) the statutory requirement to choose a method before election day (which at least stops a state government from saying, "We don't like the outcome under the rules that we set, so we're changing them after the fact"). I will note that it is less than obvious that such a statutory limitation is itself constitutional, because it purports to lime the "manner" that the states could adopt to choose electors, but I will save that for another day.
Even without post-election manipulation, a "Republican trifecta" state government (one with Republican majorities in both legislative chambers and a Republican governor) can adopt any process it likes to choose electors, no matter how obviously tilted toward their party. "Unless another party's nominee receives at least 90 percent of the popular vote, our state will send the Republican candidate's slate to the Electoral College." Supposedly, that would not happen in light of constraint (a) above, in which the people would rise up in horror and toss out the anti-democratic scoundrels. Recall, however, that doing so would require that the people still have the right to vote, that legislatures have not been gerrymandered into oblivion, and that the state's vote-counting and certification processes are clean.
The reddest of red states' Republican politicians could get away with something like that -- after all, who in their states would say, "Oh my God, our Republican politicians just guaranteed that our state will never help elect a Democratic president?" -- but that ultimately has no meaning. Oklahoma, Wyoming, Utah, and many other states do not need to rig their elector-selection processes. What matters, as always in the anti-democratic hellscape that is the Electoral College, is swing states.
Imagine, then, that the ECRA as currently written has passed, giving governors "conclusive" authority to certify electors. Flipping the script, imagine that Governor Gretchen Whitmer wins reelection later this year and is thus in office in November 2024. The election is so close that her electors from Michigan will determine who becomes the next president. Although it appears that the Republican won in Michigan, Whitmer declares otherwise.
Why is she not constrained by the people? She is term-limited, and her legislature is locked in place with a perma-Republican gerrymander, so why not? She might want to help Democrats win in 2026 when her chair in Lansing is open, but are the stakes in a presidential election not high enough to make it worth taking that risk? For that matter, although people say that amending the ECA is not necessary until at least 2028, because Kamala Harris will never abuse her role as Vice President in the way that Trump wanted Mike Pence to abuse it in 2021, are we sure? It is indeed difficult to imagine Democrats playing hardball in that way, but many things that were once difficult to imagine have become commonplace in the last few years.
The ultimate constraint, of course, would be the US Supreme Court, which would quickly shut down Whitmer's (or Harris's) moves. With three of the Court's six Republican appointees being alumni of the Bush 2000 schemes, there is no doubt that they would find a way to use their power to stop a Democratic power grab. But what about the more likely scenarios?
Instead of Michigan, imagine that Pennsylvania is the deciding state in 2024 but that Trump-cultist Doug Mastriano has taken the open governor's chair in this year's election. He and his gerrymandered majorities in the legislature could pass a law that would give him the power to declare the winner in 2024 so long as he can invoke some "irregularities" that supposedly disadvantaged the Republican presidential nominee.
This is where I agree with Tribe, Chemerinsky, and Aftergut in seeing that an improved ECRA could make a difference. In its current form, meaningful review of Mastriano's hypothetical actions are all but impossible. In TCA's improved form, maybe he could be stopped. So yes, something good could come of an effort to improve and pass the ECRA. (As I argued last week, however, the ECRA in its current form is worse than the status quo.)
Even there, however, the Supremes would have the last word, so we would ultimately be counting on a group of people who are increasingly open about their partisanship standing in the way of an arguably legal-ish move by a state government under an ECRA that had been passed by a unanimous Democratic Party (and just enough Republicans to defeat a filibuster). Why does that not make me confident?
As was the case with the Twelfth Amendment, then, it is possible to describe a situation in which the proper legal protections would save the day. Unfortunately, even getting to that point would require the Democratic candidate to successfully overcome voter suppression, vote-counting manipulation, and everything at the front end and the middle of the electoral process that the Republicans have been twisting to their advantage with increasing fervor in recent years.
And even if we were to reach that decisive point, the Supreme Court could take it all away.
Again, passing a good law would be good. I agree with TCA, however, that "[o]ur democracy will not be secure until we enact broader protection for voting rights." And that ship, unfortunately, seems very definitely to have sailed.