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

Fri Aug 7 07:43:21 PDT 2020

Thank you Michael, I forgot to include a link to Derek's excellent piece!

Sean

From: Michael Morley <mmorley at law.fsu.edu> 
Sent: Friday, August 7, 2020 10:12 AM
To: sean at impactpolicymanagement.com; 'Jeff Hauser' <jeffhauser at gmail.com>;
'Rob Richie' <rr at fairvote.org>
Cc: 'Election Law Listserv' <law-election at uci.edu>
Subject: Re: [EL] Extending safe harbor date and Electoral College vote(

Derek Muller wrote a great short piece on this exact topic earlier this
summer.  He explains that some lower courts have been misinterpreting Bush
v. Gore as making compliance with the safe harbor mandatory.  He correctly
explains that it's not.  Rick Pildes posted about it a few months ago; his
blog post links to Derek's important piece: 

https://electionlawblog.org/?p=113369 

  _____  

From: Law-election <law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu> > on behalf of
sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com>
<sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com> >
Sent: Friday, August 7, 2020 10:01 AM
To: 'Jeff Hauser' <jeffhauser at gmail.com <mailto:jeffhauser at gmail.com> >;
'Rob Richie' <rr at fairvote.org <mailto:rr at fairvote.org> >
Cc: 'Election Law Listserv' <law-election at uci.edu
<mailto:law-election at uci.edu> >
Subject: Re: [EL] Extending safe harbor date and Electoral College vote( 

I'm not sure too many people outside of the folks at National Popular Vote
believe the safe harbor deadline is truly a "drop dead" date, or that the
Supreme Court ruled it was in Bush v. Gore. The short version of what
happened there is that the Florida Supreme Court noted in its ruling that it
was the intent of the Florida state legislature when it passed its relevant
election laws to meet the deadline. The U.S. Supreme Court basically took
the Florida Supreme Court at its word on that, and ruled that Florida had to
mee the safe harbor deadline. It is applicable to no other state absent a
similar finding (and of course the fact that the U.S. Supreme Court
indicated that Bush v. Gore wasn't really supposed to be used as precedent
probably weakens the case even further that the safe harbor deadline is a
true drop dead date). Anywhere from 8-12 states on average have missed the
safe harbor deadline in each of the past 5 elections.

Sean

From: Law-election <law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu> > On Behalf Of Jeff
Hauser
Sent: Friday, August 7, 2020 8:29 AM
To: Rob Richie <rr at fairvote.org <mailto:rr at fairvote.org> >
Cc: Election Law Listserv <law-election at uci.edu
<mailto:law-election at uci.edu> >
Subject: Re: [EL] Extending safe harbor date and Electoral College vote(

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
<mailto: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.com/v3/__https:/www.fairvote.org/federal_standards_for_p
residential_recounts_needed__;!!PhOWcWs!huDf6bJCtdDZoYTeZf-y4ikXbg6M6EdQYWdy
WhmijWXK09UNsaTyLLUSxDH1dzg$>   

Rob Richie

On Fri, Aug 7, 2020 at 7:37 AM Pildes, Rick <rick.pildes at nyu.edu
<mailto: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.com/v3/__https:/electionlawblog.org/?p=113857__;!!PhOWcW
s!huDf6bJCtdDZoYTeZf-y4ikXbg6M6EdQYWdyWhmijWXK09UNsaTyLLUSejl_X1o$>  by
Richard Pildes
<https://urldefense.com/v3/__https:/electionlawblog.org/?author=7__;!!PhOWcW
s!huDf6bJCtdDZoYTeZf-y4ikXbg6M6EdQYWdyWhmijWXK09UNsaTyLLUSLIsJxY4$>  

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.mcg20
709.pdf__;!!KGKeukY!i2KVjFH2wDnoH0GmFhArdE_zaEXbOCbu3VFatk_A1X58dlHiCEAolAtt
b3IUqBcFuw$>  to extend the federal safe harbor period for states to
determine electors from December 8, 2020 to January 1, 2021 for this year's
presidential election. He explains his position in this Medium post titled,
"
<https://urldefense.com/v3/__https:/medium.com/@SenatorMarcoRubio/americans-
should-expect-election-chaos-7fa8a9ac5aa1__;!!KGKeukY!i2KVjFH2wDnoH0GmFhArdE
_zaEXbOCbu3VFatk_A1X58dlHiCEAolAttb3Ly5KFxog$> Americans Should Expect
Election Chaos."

Back in May, I called
<https://urldefense.com/v3/__https:/papers.ssrn.com/sol3/papers.cfm?abstract
_id=3613163__;!!PhOWcWs!huDf6bJCtdDZoYTeZf-y4ikXbg6M6EdQYWdyWhmijWXK09UNsaTy
LLUS1NyZC_w$>  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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-- 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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