Bob Bauer and Jack Goldsmith

Election Law Blog: Clarity about the Electoral Count Reform Act and Gubernatorial Certification

September 12, 2022

Presidential Reform Project co-chairs Bob Bauer and Jack Goldsmith published the following guest post for the Election Law Blog. An excerpt of the post can be found below:

In a thoughtful editorial, the Washington Post has stressed the importance of congressional action this fall on Electoral Count Act reform. It correctly identifies the Senate bill put forward by a bipartisan group led by Senators Collins and Manchin as the “plausible path through Congress” for this reform and “an achievement given today’s politics.” All in all, the Post says, it is a “remarkable compromise.” While noting that the bill is subject to improvement on specific issues, the Post also cautions that the amendments process should not “imperil the entire enterprise.”

One potential improvement that the editorial mentions would clarify that the slate of electors certified by a governor cannot be treated as “conclusive” and is subject to challenge in court or before the Congress. It describes this potential change as “trickier” than others but “perhaps still achievable.” The worry here seems to be that the Bill as written leaves open the possibility that an invalid or corrupt gubernatorial certification could have the final say on which electors from the State Congress must credit.

This worry is misplaced. The Senate bill provides, in clear terms, that any gubernatorial certification is, in fact, subject to legal challenge and does not bind the Congress if, upon suit by a presidential or vice-presidential candidate, a federal court determines that the governor’s certification does not reflect the outcome of the election as determined by state laws in place on Election Day. It is the ultimate judicial determination, not the governor’s initial issuance, which is treated as conclusive for Congress’s purposes in its final tally of any state’s electoral votes.

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