How Congress could diminish the risks with Electoral College count
The election will take place, as scheduled by federal law, on November 3. To deal with the circumstances under which it will be conducted, Senator Marco Rubio has smartly introduced legislation that would adjust two key but now obsolete dates in federal law which govern the Electoral College process. As we have recommended, these changes make sense, should be uncontroversial, and deserve bipartisan support from Congress.
To understand the reasons these changes are necessary takes a review of the overall Electoral College process in this country. The Constitution has the unalterable date of January 20, when the term of the current president in office ends no matter what. Even absent an election, there would still be a new president. The “acting president” would be from Congress as either the speaker of the House or the president pro tempore of the Senate.
Even during ordinary circumstances, the time pressure to complete the accurate counting of votes in the period between Election Day and early January can be intense. As many remember in 2000, when the issue was an accurate recount in one state, the Electoral College process was still not finished five weeks following Election Day, when the Supreme Court decision in George Bush versus Al Gore ended any further recount.
This year has no ordinary circumstances with the challenges for election officials across the country. There will be a major surge in mailed ballots due to the coronavirus. That means it is likely to take longer to finish the counting of all ballots. The reason is not sinister, as in many states, valid absentee ballots could arrive well after Election Day, and the process of verifying the integrity takes time. Some states, including several swing states, also have rules that block the counting of absentee ballots until Election Day or even afterwards, which could compound delays. There could also be legal challenges to the process if the contest is close.
Rubio has acknowledged this reality with his bill. The Electoral Count Act, which the bill would amend, is the federal law which governs the process. Passed in 1877, it requires that process occur in December, a reflection of the slower 19th century transportation and communication networks. But as the legislation recognizes, for this year at least, the accurate counting of ballots would benefit from permitting the Electoral College process to take place a few weeks later, perhaps even as late as early January.
Technically, we do not vote for a candidate, but for the electors who then vote for that candidate. The Supreme Court, writing in its recent “faithless electors” decision, strongly reinforced the reality that the electors merely accept the popular vote in their states. However, the Constitution still has the electors to meet in their states on one single day and cast their votes, and Congress must formally receive those votes and count them.
As federal law stands, the meeting of the electors is on December 14 this year. Six days earlier, December 8, is the other key date Congress has set. That is known as the safe harbor deadline by which a state must finish all procedures for the popular vote count, including any recounts or judicial review, if the state wants the benefit of the promise that Congress would treat the “final determination” of the popular vote as conclusive.
In the modern era, there is simply no need for these two dates to remain in December. Moreover, there could be some disastrous consequences if Congress does not change them for this year. If the safe harbor deadline remains December 8, states might feel pressure to finish by then, even if they are unable to do that fairly and accurately. States would then either have to submit inaccurate or incomplete results to benefit from the safe harbor promise or submit results after that date, in which case Congress is no longer committed to accepting those results as conclusive.
No need for these risks exists. The special joint session of Congress takes place on January 6. The electors could meet as late as January 2, and the safe harbor deadline could be moved to one day earlier on January 1. That is what Rubio has proposed, and it provides enough time for the electoral votes to reach Congress by January 6, ahead of the inauguration.
This adjustment will not threaten a smooth transition. In fact, the opposite will happen. If it turns out states do not need the extra three weeks, there is no harm done if they have them. The Electoral College outcome will be unofficial but clear based on the complete tally of the popular votes, and transition or second term plans can proceed before the electors formally meet. If states do need some or all of those extra three weeks, the failure to provide them risks throwing the election outcome into turmoil.
Rubio made a wise form of insurance to mitigate these risks with his bill. Congress should accept this policy for the election this year. States may not need it, but if they do, it could be a measure that enables Americans to broadly accept the outcome as arrived at fairly and accurately.
Richard Pildes is a constitutional law professor at New York University Law School. Edward Foley is a constitutional law professor and the director of the election law program for Ohio State University Moritz College of Law.