[EL] Pushing Back Election Canvassing/Certification Deadlines and the Key Dates in the Electoral Count Act

[David Becker]

These are very good points and I'm really glad Rick has raised them. I don't have much to add to this, other than to say the burden of counting millions more mail ballots will be significant, and it's likely that election officials will need more time not only to certify results, but allow for voters to cure ballots with an administrative error (like lacking or mismatching a signature), and also to resolve disputes.

David J. Becker | Executive Director and Founder
Center for Election Innovation & Research
1120 Connecticut Avenue NW, Suite 1040, Washington, DC  20036
(202) 550-3470 (mobile) | dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>
www.electioninnovation.org<http://www.electioninnovation.org/> | @beckerdavidj

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Pildes, Rick
Sent: Tuesday, April 21, 2020 2:32 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Pushing Back Election Canvassing/Certification Deadlines and the Key Dates in the Electoral Count Act

With the much higher volume of absentee and provisional ballots likely to be cast this fall, states are going to have to consider moving back their election canvassing and certification deadlines to give election officials enough time to process and count this much higher volume.  I have argued for certain measures states could take to reduce this burden, here<https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown>, but even if those measures were adopted, the surge is likely to task the capacity to meet these deadlines while processing the ballots accurately.

In addition, Congress should probably consider amending the Electoral Count Act to change its key dates to accommodate the possibly longer time it will take at least some states to certify their votes.  Current law requires the electors to cast their votes on Dec. 14th, but Congress does not count those votes until Jan. 6th.  The latter date is about as early as the newly elected Congress can convene, but there is no reason (I'm aware of) in the modern era for the long delay between Dec. 14th and Jan. 6th.  Thus, there is no reason the electors could not vote at least a week later.  Similarly, the "safe harbor" date, which is currently Dec. 8th, could then also be pushed back at least a week.  It might be that touching the Electoral Count Act at all is too freighted for Congress to be able to address this deadlines; members might believe that opening up the Act at all would trigger a Pandora's Box of problems.

To my knowledge, none of the voting-related bills introduced in Congress thus far say anything at all about the Electoral Count Act.

(apologies for my fingers hitting the wrong keys earlier and inadvertently sending this message out before it was written)


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