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

Fri Aug 7 07:10:56 PDT 2020

We are in the very bizarre situation of the election system being not
perfect but basically okay despite flaws while the president is doing his
best to convince us that it's highly corrupt in the manner of some
problematic democracies. As a result, it's fascinating politically that
Rubio is doing this. It goes directly against the grain of Trump's demand
that we must rely on the votes counted on election night or otherwise it's
rigged and we won't know. It also makes it much harder for courts to use
safe harbor as an excuse or states to halt or to slow walk proper
tabulations. Indeed, that seems the direct intent of the legislation.

It will be even more interesting if McConnell and company allow it to move
it forward. At this point, that seems unlikely, as McConnell is a staunch
partisan. As he represents a safe Trump state and doesn't want to risk a
negative tweet (who ever thought we would be regularly typing such a
phrase?) my guess is it gets buried. Of course, I also thought Trump would
lose four years ago.

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
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.fairvote.org_federal-5Fstandards-5Ffor-5Fpresidential-5Frecounts-5Fneeded&d=DwMFaQ&c=U0G0XJAMhEk_X0GAGzCL7Q&r=2fMgMunsCtJpikIZXRvVAXXnXpXnW1DdeOa9_DBJVAg&m=vUYui0CFE2S8YCFSWlyibVdZJWz_T-h-44oGt-uCd3E&s=4pnuarHQdet4pDTKVIDLub4ke2hIt55aGwZSgcCtpHY&e=>
>
>
> 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://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D113857&d=DwMFaQ&c=U0G0XJAMhEk_X0GAGzCL7Q&r=2fMgMunsCtJpikIZXRvVAXXnXpXnW1DdeOa9_DBJVAg&m=vUYui0CFE2S8YCFSWlyibVdZJWz_T-h-44oGt-uCd3E&s=5N3s4DIYwXfiIP2UWaey1unE5JU1LyIU8fWcYW8GzmQ&e=> by
>> Richard Pildes
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fauthor-3D7&d=DwMFaQ&c=U0G0XJAMhEk_X0GAGzCL7Q&r=2fMgMunsCtJpikIZXRvVAXXnXpXnW1DdeOa9_DBJVAg&m=vUYui0CFE2S8YCFSWlyibVdZJWz_T-h-44oGt-uCd3E&s=i1Vsp1bggqUpWY_qVJUR5mSKMAYCNVgfSmcR64QZ730&e=>
>>
>> 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://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D3613163&d=DwMFaQ&c=U0G0XJAMhEk_X0GAGzCL7Q&r=2fMgMunsCtJpikIZXRvVAXXnXpXnW1DdeOa9_DBJVAg&m=vUYui0CFE2S8YCFSWlyibVdZJWz_T-h-44oGt-uCd3E&s=mbI1FhhAYDFqQiXD9dHkBI49_bRBJdBua-NLircp3V8&e=>
>> 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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-- 
David Lublin
Professor and Chair
Department of Government
School of Public Affairs
American University
4400 Massachusetts Ave.
Washington, D.C. 20016
http://davidlublin.com/
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