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

Fri Aug 7 05:28:32 PDT 2020

For those of us who never bought the idea that the Safe Harbor meant what
the Bush v. Gore majority claimed... is this action by Rubio, if/when it
fails, going to be used to further entrench the idea that the "Safe Harbor"
is a genuine drop dead date regardless of circumstances or countervailing
(or superceding) constitutional and statutory arguments?

On Fri, Aug 7, 2020 at 8:19 AM Rob Richie <rr at fairvote.org> wrote:

> 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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>
>
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Rob Richie
> President and CEO, FairVote
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