The bipartisan accord to reform the Electoral Count Act of 1887 is a laudable attempt to clarify and regularize the presidential vote-certifying process. But they haven’t quite got it yet. It still needs improvement.
While wisely eliminating all crazy notions that the vice president enjoys any discretion in counting certified electoral votes sent to Congress, the new proposal unfortunately could be misinterpreted as providing discretionary power to each state’s governor. It also contains one apparent and important self-contradiction.
The proposal represents a vast improvement over the current, convoluted, sometimes nearly inscrutable law. It removes any perceived discretion from the vice president; it would no longer allow a single rogue congressman to gum up the works with meritless objections; and it makes clear that state electors must be chosen according to state laws that were passed before the election, without allowing state legislatures any power to alter the process or standards between election and inauguration.
You can imagine, after all the grief of the post-election season in 2020, how important all of those steps are. And so even as it is now, this proposal is worth passing.
However, it should go further. Let’s focus on the possible problems and confusions that this new proposal still might create because this accord can still be improved on a bipartisan basis.
Start with this: In one paragraph, the new bill says that the state executive (governor), pursuant to existing state law, shall issue a “certificate of ascertainment of appointment of electors” that “shall be treated as conclusive.” But the very next paragraph says any such certificate that is “required to be revised by any subsequent state or federal judicial relief … shall replace and supersede any other certificates.”
By definition, that which is “conclusive” is not something that can be “revised.” The section needs an “unless” in there somewhere to indicate the governor’s certification is conclusive “unless” some duly appointed power — say, a court — overrules it. A later paragraph says, “The determination of federal courts … shall be conclusive.” If that is the intent, then the governor’s certification is not in fact conclusive, only presumptive.
Meanwhile, even though the new bill does say that the governor must act “in pursuance of the laws” of his state, it is just as open to a misinterpretation giving the governor some sort of discretion. Consider how, in 2020, such a loophole led then-President Donald Trump and his supporters to assert that the vice president possessed some kind of discretion about certificate counting. The new bill wisely corrects that nonsense by stating that the vice president’s role is “solely ministerial” and his or her alleged discretionary powers “explicitly denied.” Similar language should apply — but in the bill’s current form, it doesn’t — to the role of each governor in certifying his state’s electors in the first place.
The proposed bill contains several other discrepancies and misguided choices. For example, a clause mentioned above allows for federal or state court relief, but everywhere else, the bill merely provides for federal court relief. Again, it’s confusing.
Moreover, while the time-sensitive nature of the presidential inaugural calendar makes it wise for the bill to expedite court processes and locate them in federal court, which it does, it is also true that it will usually be state election law, not federal, whose interpretations are at issue. So it might make sense to designate a state Supreme Court justice, not just federal jurists, as one of the members of any three-judge panel appointed to resolve state presidential election disputes.
Those are just a few of the tiny flaws and possible shortcomings in this otherwise thoughtful and constructive bill. Kudos to the bipartisan group of senators who reached an initial accord. But there’s more work to be done.
