Lofgren, Cheney Request Technical Fixes to Electoral Count Reform Act
Reps. Zoe Lofgren and Liz Cheney were the primary sponsors of the House’s version of Electoral Count Act reform, which was passed by the House earlier this year. That bill is unlikely to proceed now, with attention focused instead on the more bipartisan Electoral Count Reform Act (ECRA), sponsored by a group of senators led by Susan Collins and Joe Manchin. Leaders in both parties have expressed a desire to prioritize ECRA for passage by the end of the year.
When the Senate Rules Committee advanced ECRA before the midterms, they made a handful of changes that addressed some of the House’s concerns, such as narrowing the circumstances under which a state is authorized to hold an emergency extension of voting. I discussed the committee’s changes to ECRA here.
Now, in a letter to their Senate counterparts, Lofgren and Cheney have honed in on two additional technical fixes they would still like to see before final passage of ECRA. So far, senators haven’t publicly responded, and it’s unclear if there’s any appetite for further changes at this late date. If any are made, it would likely entail a single amendment package adopted on the floor of the Senate at the same time ECRA is attached to another must‐pass bill, such as the expected continuing resolution or the omnibus spending package.
Defining “Regularly Given”
The Lofgren‐Cheney letter highlights two worries about the current ECRA draft. Their first question takes aim at the section outlining the valid grounds for objections during the joint session of Congress to count electoral votes. Currently, the Senate bill leaves these provisions mostly unchanged, providing that objections may be made on the basis that electors were not “lawfully certified” or that their electoral votes were not “regularly given.”
That these terms went largely unchanged was perhaps the most surprising choice made by ECRA’s authors, the biggest divergence from the recommendations of most experts across the political spectrum who have analyzed the flaws in the existing ECA.
ECRA would impose a new limit on “lawfully certified” objections by tying that back to the process for courts to decide the question. The intention is that this ground for objections could only be used if somehow, in violation of the rest of the act’s provisions, Congress was presented with a list of electors contrary to how the courts have ruled. In other words, “lawfully certified” objections could only be used to ensure Congress follows those court rulings, not to reject them and substitute its own judgment.
The more troubling aspect is the term “regularly given.” This term of art was supposed to cover a narrow set of technical procedural rules for how members of the Electoral College are supposed to meet, cast and count their votes, and send to DC a certified report listing the number of votes cast for each candidate.
At the time of the 1887 ECA, “regularly given” was understood to preclude objections that went beyond the conduct of the electors themselves to reach the underlying popular election results in each state. The University of Iowa’s Derek Muller has written a thorough analysis about the history of this understanding and why it’s the proper interpretation of “regularly given.”
The problem is that Congress has not followed this proper meaning, accumulating bad precedents in which “regularly given” objections were not ruled out of order even though they exceeded the proper scope of what “regularly given” means. These precedents would stand unchanged if the Electoral Count Reform Act simply uses the same language without any clarification. Over the years, members of both parties have abused this rule to mount objections based on how each state administered its election.
In 2005, Democrats used the process to force a vote on conspiracy theories regarding Bush’s victory over Kerry in Ohio. And in 2021, Republicans used the same rule to allege that Arizona and Pennsylvania had not followed their own state laws, even though these claims had already been rejected by the courts. Similar objections by some House Democrats in 2001 and 2017 failed due to the lack of Senate cosponsors.
There are two basic alternatives for what to do with “regularly given.” One approach, adopted by the House bill, would be to enumerate a list of specific constitutional grounds for objections, such as that a presidential candidate is ineligible, or that the votes were not given on the day required, or that the electors did not follow the precise procedures required by the Twelfth Amendment.
A more conservative approach, one that would require less change to the current ECRA text, would be to insert a sentence or two offering a categorical definition of what “regularly given” means. This would amount to Congress repudiating erroneous precedents from the 2005 and 2021 electoral counts which permitted “regularly given” objections that were not, really, about anything the electors had supposedly done wrong. I wrote about what such a rule might look like here and suggested the following possible language:
…that a vote or votes cast by one or more lawfully certified electors have not been regularly given, because they are in violation of a specified provision of the Constitution regarding the meeting and voting of the electors, or the form in which their votes are to be transmitted, or for whom the electors may vote as President and Vice President. blockquote>
In addition to clarifying the scope of what “regularly given” means, this would preclude “regularly given” objections being used as a backdoor for improper “lawfully certified” objections beyond the scope of how ECRA intends to limit them. In principle, “lawfully certified” is supposed to cover objections to who a state’s electors properly are, while “regularly given” is supposed to only cover how the proper electors voted. Muddling that distinction has been one of the main problems with the status quo ECA.
Adopting such a clarified definition of “regularly given” would plausibly fit within the relatively minor technical changes Sen. Mitch McConnell and other Senate Republicans have indicated are the only sort they might be open to. It is likely the Senate is going to vote on a few other minor amendments to clean up the text of ECRA anyway, and fixing “regularly given” would be a reasonable inclusion.
On the other side of the argument is the general desire to get ECRA done as soon as possible as the clock counts down during the lame duck session. And on the substance, the higher threshold of sponsors needed for objections under ECRA (one fifth of each house) would still likely block most objections that are not properly grounded in a constitutionally valid reason. The approach advocated by Lofgren and Cheney is more theoretically sound in terms of limiting Congress to its proper constitutional role, but it might not make a huge difference in practice.
Protecting Federal Court Jurisdiction
The other issue flagged by Lofgren and Cheney is much more obscure and involves the possible unintended interaction between an old statutory provision and how the Fifth Circuit (including the Eleventh Circuit from before it was split off) has interpreted it. Under these rulings, 28 USC §1344 has been held to preclude federal court review of election disputes for certain offices including presidential elector.
This Fifth Circuit interpretation is almost certainly incorrect, as §1344 is on the face of it limited to only certain claims arising under the Fifteenth Amendment and not the vast majority of election lawsuits arising under other constitutional and statutory provisions. It’s not clear to what degree, if any, the courts would still apply this flawed interpretation of §1344. But those cases have never been explicitly overturned. Thus, §1344 presents a potential stumbling block for ECRA’s rules for how federal courts are supposed to determine a definitive winner of each state’s popular election.
As Lofgren and Cheney note, the simplest answer would be to repeal §1344, which is at best redundant to other, broader laws conferring federal court jurisdiction over federal constitutional claims, such as the much better known 42 USC §1983. Since §1344 as it stands is effectively pointless, and only two federal circuits are maybe subject to this flawed interpretation, Congress could simply repeal it without any ill effect.
Getting ECA Reform Done and Done Right
While the changes requested by Lofgren and Cheney are both reasonable on the merits, they should not be overstated. ECRA as it stands is still a good bill that broadly tracks expert consensus on what changes need to be made to avoid future constitutional crises over the electoral count. In the vast majority of plausible scenarios, the concerns expressed by Lofgren and Cheney would not change the outcome.
With time fast running out, it wouldn’t be unreasonable for the Senate to conclude it’s simply more important to get ECRA to the president’s desk as soon as possible. At the same time, avoiding any possible delay in the House is also important. In terms of getting ECRA done, it might be better for the Senate to make these changes itself rather than have the House attempt to make its own amendments, necessitating that the bill then return to the Senate.
Senate Republicans were right to reject some aspects of the House bill, which included broader and more complicated causes of action for the federal courts, among other problematic provisions. The Senate bill has also been the product of a much more bipartisan process and has attracted more GOP support. There’s little doubt that only the Senate version has any prospect of being passed into law. But in aiming to get the final product as close to perfect as possible, these two tweaks suggested by Lofgren and Cheney are reasonable to consider, and inserting them would not require further delay or any complicated rewrite of the bill.