[EL] Extending safe harbor date and Electoral College vote(

[Rob Richie]

I thought I would add a subject to Rick Pildes' important news about Sen.
Rubio's bill. This is a particularly sensible change that I hope Congress
acts on.

FairVote has proposed this since the 2000 election. Here was a piece a
colleague wrote supporting this idea as part of more comprehensive changes
that would establish a better process to resolve close electoral outcomes
in states
https://www.fairvote.org/federal_standards_for_presidential_recounts_needed


Rob Richie

On Fri, Aug 7, 2020 at 7:37 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> Important breaking news: Sen. Rubio Rightly Moves to Change Key Dates for
> the Electoral College Process
>
> Posted on August 7, 2020 4:34 am <https://electionlawblog.org/?p=113857> by
> Richard Pildes <https://electionlawblog.org/?author=7>
>
> Good news:  Senator Marco Rubio (R-FL) has introduced a bill
> <https://urldefense.com/v3/__https:/www.rubio.senate.gov/public/_cache/files/7c86cdcc-19c2-4abd-9164-bacc5e66a499/27CC6B97AB3A0618568E38775DD4B657.mcg20709.pdf__;!!KGKeukY!i2KVjFH2wDnoH0GmFhArdE_zaEXbOCbu3VFatk_A1X58dlHiCEAolAttb3IUqBcFuw$>
> to extend the federal safe harbor period for states to determine electors
> from December 8, 2020 to January 1, 2021 for this year’s presidential
> election. He explains his position in this *Medium* post titled, *“**Americans
> Should Expect Election Chaos*
> <https://urldefense.com/v3/__https:/medium.com/@SenatorMarcoRubio/americans-should-expect-election-chaos-7fa8a9ac5aa1__;!!KGKeukY!i2KVjFH2wDnoH0GmFhArdE_zaEXbOCbu3VFatk_A1X58dlHiCEAolAttb3Ly5KFxog$>
> .*”*
>
> Back in May, I called
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3613163> for pushing
> these dates back in the federal statute that governs presidential
> elections, when I identified several dates in the election calendar that
> should be changed for this fall.  Here is some of what I said then about
> the need for Congress to amend this law:
>
> The last stages in the presidential election process are the casting of
> votes by the electors and the counting of those votes in Congress. …The
> framework statute governing the meeting of the Electoral College and the
> counting of the electoral votes is the Electoral Count Act, passed in 1887.
> The Act provides that Congress must count the electoral votes on January
> 6th, 2021. That date should not be changed; January 6th is the first date
> the newly-elected Congress meets and the President must, according to the
> Constitution, be inaugurated on Jan. 20th. But the two other key dates in
> Act, which might have made sense in the 19th century, can easily be moved
> back today; there is no contemporary policy reason these dates need to be
> fixed where they currently are. Pushing them back would not only provide
> breathing room for states to complete the vote count properly under the
> exceptional burdens this fall, but also for potential legal challenges.
>
> The first is the date the electoral college formally votes. By law, that
> date is currently Dec. 14th. But there is then a gap of more than three
> weeks until Congress receives and counts those votes on Jan. 6th. . . . But
> there is no need for [that gap now]. Congress could easily push this date
> back several weeks. The electors could vote on Jan. 3rd, the same day the
> new Congress convenes (the Act currently requires the certifications of
> election to be transmitted by registered mail, but that could be changed to
> permit those votes to be transmitted electronically). … Moving this date
> back is key to relieving the vice-like pressure states will potentially
> experience in properly processing and counting the anticipated flood of
> absentee ballots.
>
> [The second key date] is the so-called safe-harbor date, which provides
> that, if states certify the winner of the election by this date
> (technically, if they appoint a slate of electors) then Congress will be
> bound by that determination. This means Congress will not challenge the
> validity of those electors if they have been appointed by Dec. 8th. As the
> country learned in Bush v. Gore, this date puts states under tremendous
> pressure to complete their processes by then. But this date, too, can
> easily be moved back without compromising any policy concerns. If Congress
> moved back the date the electors vote by two weeks or so, it would move
> this safe-harbor date back by the same amount.
>
> [To] deal with the foreseeable and unforeseeable problems that could arise
> from changing our election process almost overnight, pushing this date back
> would be good policy – particularly for this year’s election. [T]hese minor
> date changes to the Electoral Count Act should not be controversial . . .
> Congress would be doing the country a service if it held hearings and
> addressed the Act, at least for these two minor date issues (the Act is
> also notoriously ambiguous on other major issues and clearing up these
> ambiguities, before our next disputed election, would be wise).
>
> Given the sensitivity of anything involving the Electoral Count Act, and
> Congress’ general propensity not to act before absolutely necessary, the
> prospects for Congress changing these dates in the Act are perhaps not
> promising. But moving these dates back would give election officials more
> time to manage successfully and with less controversy the extraordinary
> burdens they will likely face this fall.
>
>
>
>
>
>
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