Collins-Manchin Bill Repairs Flawed 19th-Century Presidential Election Laws, But Important Changes In Bill Are Needed

“This is the beginning of the legislative process, not the end.” 

Fred Wertheimer’s Weekly Note | July 28, 2022

Last week, a bipartisan group of Senators, led by Senators Susan Collins (R-ME) and Joe Manchin (D-WV), proposed legislation to repair two antiquated 19th-century laws that govern how presidential elections work. Both laws are seriously flawed and need to be fixed now.

The Presidential Election Day Act of 1845 and the Electoral Count Act of 1887 (ECA), into which the 1845 Act was later incorporated, both played a pivotal role in former President Donald Trump’s nearly successful effort to steal the 2020 presidential election.

The Collins-Manchin reform proposal – the Electoral Count Reform Act of 2022 (ECRA) – is important and necessary legislation to address the problems of rogue state legislatures and rogue state officials overriding the presidential choice of voters in their states.

But this does not mean the Collins-Manchin proposal should be rubber stamped, as some outside commentators have suggested. There are important changes that need to be made in the bill to ensure the will of the voters prevails in presidential races.

The Collins-Manchin proposal needs to be carefully vetted. This is the beginning of the legislative process, not the end.

The events surrounding the 2020 election makes clear that any possible opening to steal a presidential election will be exploited by Trump or by a Trump-like nominee if they lose a future election.

The ECRA solves the major problem with the 1845 Act – the potential for a rogue state legislature to override the choice of the voters on Election Day, an effort that Trump and his collaborators aggressively pursued.

The 1845 Act provides that state legislators can themselves name the presidential electors if they determine that the voters have “failed to make a choice” on Election Day. This undefined language could allow a state legislature to declare – for whatever reason it chooses, including a spurious claim of widespread fraud – that the voters have “failed to make a choice” and then appoint its own presidential electors.

Trump and his hand-picked minion at the Justice Department, Jeffrey Clark, tried to use the Department to set the stage for precisely such an effort, but they were blocked by top DOJ officials who refused to go along with the scheme.

The ECRA solves this dangerous problem by eliminating the “failed choice” option for state legislatures, thereby removing the ability of rogue state legislatures to override the voters in their states by simply declaring the election had failed to choose a winner.

The ECRA contains other important reforms such as the codification of the long-held understanding that the Vice President has only a ministerial role in presiding over the congressional process of counting the electoral votes.

The Collins-Manchin bill, however, fails to effectively address other key problems that open the door for rogue state officials or Members of Congress to reject the will of the voters in a presidential election. These problems include the following:

• The judicial review process in the bill to check a governor’s certification of electors is unworkable;
• The standard for extending Election Day in “extraordinary” circumstances is too broad and gives states too much unchecked discretion; and
• The bill needs clearly enumerated standards that limit the ability of Congress to override a “conclusive” certification of presidential electors by a governor or a court.

The Judicial Review Process

The ECRA empowers a governor or other designated state official, after Election Day, to make a “conclusive” certification of electors, subject to judicial review. It is essential for that judicial review process to be able to deal effectively with a rogue governor’s improper certification of presidential electors, or failure to certify any electors at all.

The judicial review process in the ECRA, however, is unworkable.

The ECRA bill allows a governor to certify the electors as late as six days before the Electoral College meets in mid-December to determine the winner of the election. It also provides for an aggrieved presidential candidate to bring a federal court challenge to a governor’s certification (or failure to certify) in an expedited process before a special three-judge district court with a direct appeal to the Supreme Court.

If a rogue governor formally certifies the wrong electors but delays the certification until the deadline just six days before the Electoral College meets (or even delays until near the deadline), the judicial review process in the ECRA will not work.

The process simply does not provide enough time for a legal challenge to the governor’s certification to be filed, briefed, argued, and decided by the three-judge court and then appealed, briefed, argued, and decided by the Supreme Court.

All of that can’t realistically happen in six days and thus the appeals process cannot serve its necessary purpose.

This time frame for judicial review needs to be expanded. One way of accomplishing this would be to move back the date of the Electoral College meeting until later in December, leaving more time for judicial challenges between a deadline date for certification by the governor and the date of the meeting of the Electoral College when the electors vote for President.

There is no magic to the current date set by the ECA for the Electoral College to meet in mid-December. The date can be changed by Congress and moved closer to the end of December. More time must be provided for a realistic judicial review process to take place.

Related to the certification and judicial review process, the ECRA also should require that a governor certify the presidential electors chosen by the voters – an obvious but important legal requirement that is currently lacking and that can also serve as a standard for the courts to use in reviewing a challenge to a certification made by the governor.

Extending Election Day

In the course of solving the “failed to make a choice” problem, the ECRA created a new problem by providing that a state can extend Election Day if “necessitated by extraordinary and catastrophic events.”  But, crucially, it leaves entirely to the states to define what constitutes an “extraordinary and catastrophic” event and provides no date certain by which the extended election must be held.

The standard in the ECRA is clearly intended to include events such as a terrorist attack or a weather or natural disaster on Election Day.

But it is phrased so broadly and gives states so much unchecked discretion that it also leaves room for the state legislature to pass legislation that would empower a rogue governor or rogue state legislature to declare that claims of supposedly widespread voter fraud constitutes an “extraordinary” event. This would open the door for manipulating when and where the extended election would be held.

This problem can be addressed by providing a better-tailored definition of the catastrophic circumstances the provision is properly meant to cover, such as by using the term “force majeure,” a suggestion made by Andy Craig of the Cato Institute who notes that the term has a well-developed legal definition.

The provision should also explicitly prevent “voter fraud” from being considered to be an “extraordinary and catastrophic” event. And the provision should also set a date certain by which any extended election must be concluded.

While it might seem farfetched to imagine a governor or state legislature claiming that “voter fraud” is an “extraordinary and catastrophic” event, the 2020 election and its aftermath showed the nation that there is no scheme too farfetched for a Trump or a Trump-like nominee to undertake in an effort to steal a presidential election.

Standards For Congress To Apply

The ECRA provides that the certification of presidential electors by a governor or other designated state official shall be “conclusive.” It also provides an exception to this finality: if a reviewing court finds that the governor’s certification was in error, the court has the authority to require a revised certification to be issued, and that certification is then “conclusive.”

But the ECRA also allows Congress, when counting the electoral votes, to reject a “conclusive” certification by a governor or a court and instead find that the electors from a state were not “lawfully certified” or that their votes were not “regularly given,” two terms in the current ECA that the proposed legislation does not change.

These provisions are contradictory, as Andy Craig of the Cato Institute also points out. In other words, the certification given by a governor or by a court is “conclusive” unless and until Congress finds it is not. The broad and ill-defined standards provided – not “lawfully certified” or “regularly given” – to allow Congress to override a “conclusive” certification by a governor or a court are easily subject to abuse.

In order to prevent rogue Members of Congress from overriding a “conclusive” state certification of electors, we agree with the recommendation of Craig of the Cato Institute that the ECRA “should clearly enumerate the constitutionally valid reasons Congress might reject a vote,” and that these standards should be the only basis for Congress to override a “conclusive” state certification.

There are other technical changes that also should be considered as Congress proceeds with its review of the ECRA.

It is unfortunate that that the ECRA fails to include any of the essential provisions in the Freedom to Vote: John R. Lewis Act that would override the unprecedented state voter suppression and election sabotage laws enacted since 2020. That vital legislation was killed by a Senate filibuster in January.

The ECRA is important legislation to address the serious problems in two antiquated 19th-century laws including the dangerous “failed election” provision that originated in the 1845 Act.  But, it is not enough to eliminate the ability of rogue state legislatures to override the will of the voters expressed on Election Day, but leave room for rogue governors or rogue Members of Congress to accomplish that same result.

The ECRA must be revised in order to ensure that it solves existing problems and doesn’t create new ones.

Congress must act now to ensure a Trump-like effort to steal a presidential election is not successful in the future.

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Fred’s Weekly Note appears each Thursday in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s newsletter here. And, subscribe for free here and receive your copy each week via email.