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

Fri Aug 7 10:21:29 PDT 2020

I wonder whether Congress actually can bind itself  -- in its electoral
vote counting role -- to honor the safe harbor date. I suppose this may be
a question of justiciability, but perhaps not only that.

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com

On Fri, Aug 7, 2020 at 5:29 AM Jeff Hauser <jeffhauser at gmail.com> wrote:

> 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
>> 6930 Carroll Avenue, Suite 240
>> Takoma Park, MD 20912
>> rr at fairvote.org  (301) 270-4616  http://www.fairvote.org
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>>
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