Elections experts, law professors, former President of National Association of Secretaries of State urge Congress to pass state vote counting deadline extension to avoid crisis
WASHINGTON, D.C.- With just a month to go before the November 3rd election, a group of 40 experts on elections and democracy are imploring Congress to support a bill that would give states more time to tally election results.
A letter the group sent to Senate and House members expresses concern that delays due to close races, legal disputes, and the unprecedented number of mail-in ballots expected during the Covid-19 pandemic could prevent states from being able to fully and accurately count votes by current deadlines, resulting in a constitutional crisis.
“In the event of one or more protracted disputes at the state level, the addition of 24 days to the deadline for determining electors could spare the country a debilitating national political crisis,” the letter notes. “Otherwise, it may fall to the new Congress (on January 6) to determine the winner of the electoral votes of one or more states, under the troublingly ambiguous provisions of the Electoral Count Act of 1887. This could produce a grave national controversy just two weeks before the inauguration.”
The group, which includes research, legal, and policy expertise on election administration across a wide range of institutional affiliations, is specifically asking Congress to back a bill Senator Marco Rubio introduced on August 6th, which would extend the federal safe harbor deadline from December 8, 2020 to January 1, 2021, and the Electoral College vote from December 14 to January 2.
The experts hope their letter can help generate newfound bipartisan support for the measure, noting, “the extension of these deadlines would not favor or prejudice either political party,” and that “as experts who study the election process, the resolution of disputed elections, and similar matters, we believe Senator Rubio’s bill is good insurance for the integrity of the election and ought to be adopted.”
If the letter is successful in spurring enactment of the measure, states would gain valuable time to resolve any election disputes prior to Inauguration Day.
The full letter is attached below.
This group of election experts came together as part of the “Uphold Our Democracy” initiative organized by New America and Fix the System.
Dear Senator / Representative,
We are a group of democracy scholars and experts in election law and administration who are deeply concerned that, due to the unique circumstances of the Covid-19 pandemic, the November election may confront formidable challenges in ensuring that a full, accurate, and reliable count is completed within the current statutory timelines, which were set for more normal times. Because the unprecedented increase in mail-in ballots could require longer times to process and count a much higher volume of these ballots; because the presidential election contest could be quite close in some states; and because it could take some considerable time to resolve a state-level dispute over the election count, the current federal safe harbor deadline of December 8 for states to determine their electors might not provide enough time for every state to resolve fairly and accurately multiple and overlapping litigation that may arise.
To avert a crisis that could strain our democracy, we urge you to support the bill introduced by Senator Marco Rubio that would extend the federal safe harbor period from December 8, 2020 to January 1, 2021, and that would extend the Electoral College vote from December 14 to January 2.
To begin with, the existing deadlines do not serve any significant policy interest. Indeed, they originate in 1887, when issues of communication and transformation were completely different. There is no reason that the Electoral College vote needs to take place on December 14th, when that vote then just sits there until the new Congress convenes. For similar reasons, the safe harbor date can be pushed back a few weeks, in case states need that time, without harming the electoral-vote counting process in any way.
The extension of these deadlines would not favor or prejudice either political party. And hopefully it would prove unnecessary. Should the 2020 presidential election produce a clear winner or should any disputes at the state level be resolved expeditiously, the federal safe harbor deadline would remain a ceremonial moment on the pathway to the formal election of the next president.
However, it is also possible that not all issues will be resolved by December 8. Even in what seemed like normal circumstances in Florida in 2000, a close vote in a major swing state was at great risk of failing to meet this date (and indeed, the constitutional recount process that the Supreme Court endorsed could not be completed within that time, which is why a majority of the Court concluded that the recount had to be terminated).
Congress should not wait for a crisis to emerge but should preempt the crisis by legislating in advance. In the event of one or more protracted disputes at the state level, the addition of 24 days to the deadline for determining electors could spare the country a debilitating national political crisis. Otherwise, it may fall to the new Congress (on January 6) to determine the winner of the electoral votes of one or more states, under the troublingly ambiguous provisions of the Electoral Count Act of 1887. This could produce a grave national controversy just two weeks before the inauguration.
In our polarized culture, one side immediately sees sinister motives in almost any suggestion the other side makes. But as experts who study the election process, the resolution of disputed elections, and similar matters, we believe Senator Rubio’s bill is good insurance for the integrity of the election and ought to be adopted. The country will not benefit, if the election is contested, from having state counting processes being rushed or even forced to shut down arbitrarily, based on deadlines set decades ago that are not needed today. If even a few states need more time this year than normally to fairly and accurately count all valid ballots and only valid ballots, they should have that time, when it will not compromise Congress receiving the Electoral Votes on January 6th. Time for a calm, unrushed resolution of any issues will help produce as broadly legitimate a national outcome as possible.
At this time of ever-more intense polarization of our politics, Senator Rubio’s bill would provide a welcome element of relief and protection. We urge you to support it, and even to co-sponsor it.
Tabatha Abu El-Haj - Professor of Law, Drexel University Kline School of Law
Bruce Ackerman Sterling - Professor of Law and Political Science, Yale Law School
Stephen Ansolabehere - Thompson Professor of Government, Harvard University
Lonna Atkeson - Professor of Political Science; Executive Director, Institute for Social Research, University of New Mexico
Julia R. Azari - Associate Professor and Assistant Chair, Department of Political Science, Marquette University
Richard Briffault - Chamberlain Professor of Legislation, Columbia Law School
Lisa A. Bryant - Associate Professor of Political Science, California State University, Fresno
Barry C. Burden - Professor, Department of Political Science; Director, Elections Research Center, University of Wisconsin-Madison
Bruce Cain - Professor of Political Science, Stanford University
Larry Diamond - Senior Fellow, Hoover Institution & Freeman Spogli Institute, Stanford University
Joshua Douglas - Ashland Inc-Spears Distinguished Research Professor of Law, University of Kentucky Rosenberg College of Law
Joseph Fishkin - McLean Professor in Law, University of Texas at Austin School of Law
Edward B. Foley - Ebersold Chair in Constitutional Law; Director, Election Law at Ohio State, Ohio State University Moritz College of Law
Larry Garber - Expert Consultant, The Carter Center Adjunct Professor, Arizona State University Law School
James A. Gardner - SUNY Distinguished Professor, Bridget and Thomas Black Professor, Research Professor of Political Science, SUNY University at Buffalo School of Law
Anthony J. Gaughan - Professor of Law, Kern Family Chair in Law, Drake University Law School
Trey Grayson - Former Secretary of State, Kentucky; Former President, National Association of Secretaries of State (NASS)
Rebecca Green - Professor of the Practice of Law, Co-Director of the Election Law Program, William & Mary Law School
Abner S. Greene Manning - Professor of Law, Fordham Law School
Paul Gronke - Professor of Political Science; Director, Early Voting Information Center, Reed College
Richard L. Hasen - Chancellor's Professor of Law and Political Science, University of California, Irvine
Steven F. Huefner - O'Neill Professor in Law and Judicial Administration; Director of Clinical Programs; Deputy Director, Election Law, Ohio State University Moritz College of Law
Samuel Issacharoff - Reiss Professor of Constitutional Law, NYU School of Law
Kevin R. Johnson - CEO, Election Reformers Network
Michael S. Kang - Karnes Research Professor of Law, Northwestern Pritzker School of Law
David Kimball Professor and Interim Chair of Political Science, University of Missouri, St. Louis
Vladimir Kogan - Political Scientist, Ohio State University
Lawrence Lessig - Furman Professor of Law and Leadership, Harvard Law School
Michael McConnell - Mallery Professor, Director of the Constitutional Law Center, Stanford Law School
Brendan Nyhan - Professor of Government, Dartmouth College
Norm Ornstein - Resident Scholar, American Enterprise Institute
Daniel R. Ortiz - Horvitz Distinguished Professor of Law, University of Virginia School of Law
Richard Pildes - Sudler Family Professor of Constitutional Law, NYU School of Law
Michael J. Pitts - Professor of Law, Vice Dean, Indiana University Robert H. McKinney School of Law
Kate Shaw - Professor of Law, Co-Director of the Floersheimer Center for Constitutional Democracy, Benjamin N. Cardozo School of Law
Nicholas Stephanopoulos - Professor of Law, Harvard Law School
Charles Stewart - Sahin Distinguished Professor of Political Science, Massachusetts Institute of Technology
Mara Suttmann-Lea - Assistant Professor of Government, Connecticut College
Franita Tolson - Professor of Law, Vice Dean for Faculty and Academic Affairs, University of Southern California Gould School of Law
Charles Zelden - Professor of History and Political Science, Nova Southeastern University