Electoral Count Act Reform Senate Testimony

HEARING OF THE SENATE COMMITTEE ON RULES AND ADMINISTRATION

“THE ELECTORAL COUNT ACT: THE NEED FOR REFORM”

August 3, 2022

The Task Force on the Rule of Law and the Election Law Committee of the New York City Bar Association (the City Bar) appreciate the opportunity to provide testimony to the Senate Committee on Rules and Administration on the need for reforms to the Electoral Count Act.[1]  The City Bar considers free and fair elections to be the foundation of our republican form of government, and, like so many others in America, is proud of its cornerstone feature – the peaceful transfer of power.  As a result of the controversial procedures of the presidential election of 1876, the United States Congress sought to clarify the process of electing the president and vice-president of the United States by enacting the Electoral Count Act (the ECA) as a statutory companion to the Twelfth Amendment to the United States Constitution.  Despite the statute’s ambiguities and somewhat inconsistent provisions, our presidential elections have followed the rules it set without any meaningful controversy or challenge to outcomes.  The 2020 election, however, brought into question certain provisions of the ECA – and the City Bar is supportive of Congress’s work in attempting to clarify the procedures to be followed in presidential elections.

In response to the threats posed during the 2020 presidential election, the City Bar has supported a wide range of actions to secure our elections, enforce citizens’ right to vote and protect our democratic processes. Our committees have offered recommendations for how Congress might clarify the ECA[2] and supported critical voting reforms, including the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.[3]  The City Bar remains equally committed to the rights of voters to participate in free and fair elections and continues to urge passage of both of those voting rights bills.  However, with passage of those important bills uncertain, we urge Congress not to forgo the opportunity to make necessary reforms to the ECA.

The City Bar therefore supports the recently introduced bipartisan Electoral Count Reform and Presidential Transition Improvement Act (ECRA).[4] Critically, the ECRA clarifies the role of the vice-president, as presiding officer of Congress during the ratification of the Electoral College votes cast by the fifty states and Washington DC.  The proposed Electoral Count Reform Act makes clear, correctly, that the vice-president’s role during this process is ministerial. While this bill contains extremely important reforms of the ECA, we offer the following recommendations for clarifying key provisions that should be included in any final ECA reform legislation.

RECOMMENDATIONS

The proposed ECRA addresses Congress’ role during this ratification process.  Instead of the current provision, allowing for just one member of the House of Representatives and one Senator to object to a state’s electoral slate, the legislation would require that one-fifth of each house object before Congress may consider the bona fides of that slate. We believe this requirement ought to be one-third of each house,[5] though either change is a marked improvement over existing law, which provides an incentive for frivolous or bad-faith objections.  Sound public policy considerations suggest that objections to a state’s electoral slate not be considered in the absence of substantial support in both houses.[6]

Equally important, the ECRA would clarify the objection process by requiring that both houses of Congress vote to sustain any objection, eliminating that provision of Section 15 of the ECA that permits a governor to choose between competing electoral slates.  Because of the importance of such an action, we believe the vote sustaining an objection should be by a supermajority, such as two-thirds, of each house.

The proposed ECRA also attempts to tackle the issue of when an objection to an election is legitimate.   Here we think the proposed ECRA can be improved.  The proposed language states only that an objection is proper if an elector was not lawfully certified or his or her vote was not “regularly given.”  The first consideration is fairly straightforward; however, the requirement that a vote be “regularly given” offers, in our view, excessive opportunities for interpretation.  We therefore suggest that an objection may only be made when (a) the elector in question voted in violation of constitutional or statutory requirements or voted fraudulently or corruptly; (b) the elector in question voted on an untimely basis; (c) the elector is constitutionally ineligible to serve;[7] (d) the elector voted for a constitutionally ineligible candidate; or (e) the state submitted electoral votes exceeding the number to which it is entitled.  We urge the Congress to consider these or similarly well-defined and specific situations in drafting a provision that permits objections, rather than the open-ended language of the current proposal.

We further commend the drafters of the ECRA in emphasizing the importance of and respect for the voters of each state. We agree that once ballots have been cast and election day is passed, no new laws or regulations can be enacted to disturb the choice of the voters.  This means, of course, that neither the legislature of a state nor a court or executive should be able to supersede in any way the will of the voters who have chosen a slate of electors pledged to a presidential candidate on the basis of laws and regulations in effect at the time of the election.  That principle, clearly expressed in the pending legislation, is critical to the rule of law and to a free and fair procedure for electing the president and vice-president.

A related point on this issue deserves attention. Section 102(a) of the ECRA includes the catch-all phrase “extraordinary and catastrophic events” in describing conditions that would allow an extension of the period for voters to cast ballots after election day. This is an improvement over the highly problematic Section 2 of the current law, which permits the legislature to appoint electors if there is a “fail[ure] to make a choice” on election day.  However, the parameters of such “extraordinary and catastrophic” circumstance are unspecified and could themselves give rise to multiple interpretations that could undermine the integrity of election results either within a state or across multiple states experiencing the same conditions.  We think it important, therefore, that the proposed legislation make clear that only highly specific circumstances, as determined by a court based on state law or election regulations in effect on election day, can provide a basis for extended voting and that any such extension be tailored closely to the time and place of the voting precincts affected by those conditions and recognize the importance of having all states certify their electoral college votes by the same date.

We commend the ECRA drafters for the reforms they have included designed to ensure that Congress is able to identify a single, conclusive slate of electors from each state that is submitted by the responsible executive official pursuant to state law or election regulations in effect as of election day, and including the requirement that Congress defer to slates of electors submitted by a state’s executive pursuant to the judgment of federal or state courts, also based on such state law provisions.   To clarify that the executive’s decision shall only be conclusive if it is lawful, in Section 104 of the ECRA, amending ECA section 5, we would, at the end of the new section 5(c)(1)(A) (page 5, line 25 of bill), delete the word “and” immediately preceding the new section 5(c)(1)(B) and substitute the words “except that”, as outlined below:

            (c) Treatment of certificate as conclusive.—

(1) IN GENERAL.—For purposes of section 15—

(A) the certificate of ascertainment of appointment of electors issued pursuant to this section shall be treated as conclusive with respect to the determination of electors appointed by the State; and except that

(B) any certificate of ascertainment of appointment of electors as required to be revised by any subsequent State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.

Finally, although we support the reforms of the ECRA, we think it unnecessary to engraft an unprecedented proceeding before a three-judge court onto an ECA reform proposal.  State and federal courts have the experience and expertise to handle critical election matters efficiently and expeditiously, and have routinely done so in the normal course of their regular judicial processes.  We need look no further for proof of that than the scores of cases which federal and state courts promptly and fairly adjudicated after the 2020 presidential election, and would prefer to continue our tradition of reliance on their doing so.

***

We applaud the Senate Committee on Rules and Administration for holding this hearing, and congratulate the drafters for taking these important first steps, in a bipartisan nature, to clarify and strengthen the Electoral Count Act.  While we continue to believe that it is critical that the Senate adopt comprehensive voting rights protections such as those proposed in the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, we urge Congress to take this opportunity to enact essential reforms to the Electoral Count Act.  We appreciate the Committee’s consideration of our recommendations and would welcome the opportunity to answer any questions or to discuss the issue further.

Rule of Law Task Force
Marcy L. Kahn, Chair

Election Law Committee
Rachael A. Harding, Chair