Adav Noti*
3 Fordham L. Voting Rts. & Democracy F. 167
Adav Noti:
Great. Thank you. Thank you for having me and for the chance to be here today. I agree with Jenny:1See Jenny Gimian, The County Certification Problem, 3 Fordham L. Voting Rts. & Democracy F. 160, 166 (2024) (identifying systems in place to protect the 2024 election). the answer to the question “are we ready,” is basically yes. I think the strategies that Jenny described are the main ones that are likely to come up.2See id. But I want to draw back a little bit and talk about why it is that we’re talking about county certification, this process that really nobody ever cared about before.
Why are we talking about that as the threat? And the backstory there is that the other efforts to subvert the election that we saw in 2020—to subvert it at the federal level, to subvert it at the statewide level—those are pretty much off the table now because of changes to federal law in the Electoral Count Reform Act.3Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, div. P, tit. I, 136 Stat. 4459, 5233 (2022). So, most of the strategies that we saw in 2020 to subvert the election are non-starters now, or at least much, much more difficult to pull off. If you want to subvert a presidential election, you’d much rather do it at the federal level or at the statewide level, right? But because those are so difficult, that’s why we’re seeing this targeted effort on counties, which is not going to work.
There are many safeguards in place in addition to all the ones Jenny mentioned.4See generally Gimian, supra note 1. I mean, if a county official truly just said, “well, I don’t care about the court order,” then they can get incarcerated, they can get replaced, they can get removed from office, or the statewide official could step in and certify in their place. Just defying a court order is not going to work. So why is it that federal and statewide subversion are off the table? Think back to 2020 and here are the main tactics that we saw.
The main tactic in 2020 to overturn the election focused on trying to get state legislatures to come back into session after the election in the swing states, overrule the voters, and have the state legislatures themselves appoint the electors from that state to the Electoral College.5Rosalind S. Helderman, All The Ways Trump Tried to Overturn the Election—And How it Could Happen Again, Wash. Post. (Feb. 9, 2022), https://www.washingtonpost.com/politics/interactive/2022/election-overturn-plans [https://perma.cc/AR2P-UE9J]. The legal hook for that was in part what Rick talked about6See Richard H. Pildes, Litigating The 2024 Election, 3 Fordham L. Voting Rts. & Democracy F. 155, 156 (2024) (explaining the independent state legislature theory). and the idea that state legislatures have unfettered authority,7See Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 542–43 (2021). but it was also hooked to a provision of federal law in the old Electoral Count Act of 1887 that said that if a state held a presidential election and it “failed,” then the state legislature could appoint the electors from that state.8Daniel I. Weiner, Martha Kinsella & Katherine Scotnicki, How to Fix the 1887 Electoral Count Act, Brennan Ctr. for Just. (Sep. 22, 2022), https://www.brennancenter.org/our-work/research-reports/how-fix-1887-electoral-count-act [https://perma.cc/YMY8-JY2S]. That provision was supposed to be for situations like snowstorms, it was not supposed to be for a candidate just being really, really upset that they lost, but that was the legal hook for it in federal law.9Chris Crawford, Frequently Asked Questions about the Electoral Count Act, Protect Democracy (Dec. 20, 2022), https://protectdemocracy.org/work/electoral-count-act-faq [https://perma.cc/DJ8K-YJCC]. The Electoral Count Reform Act repealed that provision.10Id. It’s gone. It’s off the books. There is no more exception that would allow a state legislature to appoint electors after election day. So that’s one.
Tactic number two was to try to get governors in these closely contested states to take some step to delay or deny the certification of the results there.11Amy Gardner, Colby Itkowitz & Josh Dawsey, Trump Calls Georgia Governor to Pressure Him for Help Overturning Biden’s Win in the State, Wash. Post. (Nov. 20, 2020, 7:45 PM), https://www.washingtonpost.com/politics/trump-kemp-call-georgia/2020/12/05/fd8d677c-3721-11eb-8d38-6aea1adb3839_story.html [https://perma.cc/YKT7-VRPE] The Electoral Count Reform Act did two things to make that very, very difficult to pull off in this or future elections. One, it set a deadline: a hard federal deadline for a governor to certify the presidential election in every state.12Campaign Legal Center, Electing the President: From Election Day to the Joint Session 7 (2023). This year that deadline is December 11th.13Id. And just in case they don’t, the act also established an expedited specific federal court procedure to take place between that certification deadline and the day that the Electoral College voters cast their votes, which is December 17th, to resolve any disputes related to a governor who refuses to certify an election or certifies the wrong winner.14Id. at 8. So that tactic of trying to get a governor just unilaterally say, “no, I think somebody else won my state,” would be almost impossible to pull off this year, too.
And then finally, of course, we saw the efforts to subvert the election in 2020 based on trying to get either (1) the Vice President on January 6th, 2021, in his capacity as the presiding officer over the joint session of Congress that counts electoral votes, to unilaterally decide, “I think the other candidate won,”15Annie Karni & Maggie Haberman, Pence’s Choice: Side with the Constitution or His Boss, N.Y. Times (last updated Jan. 15, 2021), https://www.nytimes.com/2021/01/02/us/politics/gop-senators-josh-hawley-election.html [https://perma.cc/RV8R-4M3L]. or (2) to get Congress to vote to determine that the other candidate won.16Catie Edmondson & Michael Crowley, Hawley Answers Trump’s Call for Election Challenge, N.Y. Times (last updated Jan. 15, 2021), https://www.nytimes.com/2020/12/30/us/politics/josh-hawley-trump-election-challenge.html [https://perma.cc/995S-GZM7]. The Electoral Count Reform Act specifies what everybody already really knew about the Vice President, which is that the Vice President, believe it or not, doesn’t get to decide who won the presidential election.17Campaign Legal Ctr., supra note 12, at 11 (citing 3 U.S.C. § 15(b)(1)). And as to Congress under the old Electoral Count Act, all it took to object to electoral votes from any given state was one member of the House and one member of the Senate.18Weiner et al., supra note 8. And that’s what we saw on January 6th, 2021, which enabled the delay in the proceedings that allowed the mob to attack the Capitol.19See Kat Lonsdorf et al., A Timeline of the Jan. 6 Capitol Attack—Including When and How Trump Responded, NPR (last updated Jan. 5, 2024, 4:25 PM), https://www.npr.org/2022/01/05/1069977469/a-timeline-of-how-the-jan-6-attack-unfolded-including-who-said-what-and-when [https://perma.cc/BN54-KD2F].
The Electoral Count Reform Act raises that threshold for objections to twenty percent of both chambers of Congress.20Crawford, supra note 9. So you need twenty percent of the House and twenty percent of the Senate to object for there even to be a debate about the objection. If that threshold had been in place on January 6th, 2021, none of the objections would have been debated.21Karen Yourish, Larry Buchanan & Denise Lu, The 147 Republicans Who Voted to Overturn Election Results, N.Y. Times (last updated Jan. 7, 2021), https://www.nytimes.com/interactive/2021/01/07/us/elections/electoral-college-biden-objectors.html [https://perma.cc/P7HY-KJ72] (identifying eight objectors in the Senate and 137 in the House). They got nowhere near twenty percent of the Senate.22Id. So the delay would not have happened, and the proceedings would have been over.
So that’s why all the focus is on the county level, because if you’re going to try to subvert this election, it’s going to be really, really hard to do it at the federal or statewide level.
In terms of how the provisions of the Electoral Count Reform Act are likely to play out in this election, besides sort of closing off certain avenues, here are some things that we’re likely to see, and they overlap a little bit with what Jenny23See generally Gimian, supra note 1 (discussing county certification). and Rick24See Pildes, supra note 6, at 157–58. mentioned. So first when it comes to county certification, although the ECRA doesn’t specifically address this, I think what we will probably see is the December 11th statewide certification deadline being used affirmatively to help force counties to certify. So, when there is a court action over county non-certification, in addition to all the other claims about why that’s non-discretionary, ministerial, et cetera, another point will be that you have to do it because the state has to finish its procedures by December 11th under federal law, so let’s get this show on the road. I think it will be invoked in that context.
Second, we’re already seeing, and Rick talked about this,25Id. litigation over this definition of “election day,” which was sort of recodified in the Electoral Count Reform Act.26Complaint at 6–13, Republican Nat’l Comm. v. Burgess, No. 3:24-cv-00198 (D. Nev. 2024). And this argument being raised is that somehow because the act sets election day as the first Tuesday after the first Monday in November—which it has for a very, very long time—ballots that are received after that date cannot be counted.27Ashley Lopez, Republicans Say Mail Ballots Arriving After Election Day in Nevada Should Be Illegal, NPR (June 6, 2024, 8:00 AM), https://www.npr.org/2024/06/06/nx-s1-4973736/mail-ballot-return-lawsuits-nevada [https://perma.cc/7XW7-KB2L]. As Rick said, the number of ballots at issue in that litigation is not large. I don’t think that litigation is even necessarily intended to win before the election. I think it’s intended to lay the groundwork now for, if we get to a post-election period and the folks who are bringing those suits don’t like the result of the election, they will say, “see, we told you all along that this election was being conducted unlawfully in violation of federal law.” The fact that that “violation” relates to a small number of ballots is not particularly relevant to that argument. It’s not about the law. It’s about laying the groundwork for an attempt to overturn the election politically.
And then finally, I think we will see the raised congressional objection threshold come into play. I think it’s very likely that just as we are, I think, almost certain to see some county somewhere in the United States refuse to certify its presidential election, I think some member of Congress is going to decide to object to the presidential election results on January 6th, 2025. And I think that’s true regardless of who wins. Will they get twenty percent of both houses of Congress? I doubt it. I doubt it in either direction, but I think that change will come into play. So, I think those are the main topics that I wanted to address.
Jerry Goldfeder:
Great, thank you so very much. I just have one question for Adav and maybe Rick and Jenny can weigh in if you’d like. So, let’s assume good faith and let’s assume the polls are right and it’s very, very close. And let’s further assume that the margin—in Pennsylvania, for example—is so small that we go to manual recounts, and it really just takes forever. It just goes on and on. And so, the state is supposed to certify by December 11th, but they pass that date. The Electoral College will meet on December 17th, but Pennsylvania is not ready. What happens to the electoral college votes from Pennsylvania if they’re just not ready to certify because they’re still haggling—again, assuming good faith—over ballots that they are manually inspecting. Does the number 270 get changed? Do the electors from Pennsylvania vote later? How does that work?
Adav Noti:
Yeah, it’s not going to happen. And I’ll say why: every official at every stage of this process is aware of these deadlines, December 11th for a statewide certification, December 17th for the electoral college to vote.28Campaign Legal Ctr., supra note 12, at 4. And the statewide officials in all of these states, Pennsylvania and all seven of them, have these dates metaphorically and probably literally circled on their calendars. They know that these are federal obligations, and they know that if you get to 12:01 a.m. the day after December 11th, suit will be filed, certainly in federal court and likely in state court as well. And if it requires a court order to mandate that certification, the courts also know these deadlines.
And in fact, the Pennsylvania Supreme Court just did something wonderful a couple of weeks ago and issued a special procedural rule for post-election litigation.29In re: Temporary Modification and Suspension of the Rules of Appellate Procedure and Judicial Administration for Appeals Arising Under the Pennsylvania Election Code, No. 622 (Pa. 2024) (hereinafter Pennsylvania Order). Pennsylvania30Id. and Arizona31In re: Priority for Adjudication of Post-General Election Judicial Proceedings, No. 2024-199 (Ariz. 2024) have both issued these procedural rules, and I wish every state did it. It’s a special rule that says if a suit is filed in the post-election window and it’s about the presidential election, it has to be briefed basically in one day and we’re going to decide it the next day.32See, e.g., Pennsylvania Order at 2 (“Appellants shall file briefs within 24 hours of [] filing their notice of appeal and . . . [a]ppellees’ briefs are due within 24 hours of the filing of appellants’ briefs.”). That ensures that there’s enough time to resolve that dispute between the certification deadline—if it is missed—and election day.
And the courts, including the U.S. Supreme Court, have a pretty much unblemished record of resolving these cases by these deadlines.33See, e.g., Trump v. Biden, 2020 WI 91 (Wis. 2020) (complaint filed on December 7 and resolved on December 14); Bush v. Gore, 531 U.S. 98, 121 (2000) (emergency motion filed in state court on November 16 and resolved by Supreme Court on December 9). If you look at Bush v. Gore, the Supreme Court said, one of the reasons we’re going to take this action now is because we need to make sure that the results are settled by the time the Electoral College votes.34See Gore, 531 U.S. 98 at 121 (Rehnquist, C.J., concurring). So every actor knows, the courts know, the U.S. Supreme Court knows, they’re not going to let it get to December 17th.
Executive Director, Campaign Legal Center. These remarks were presented as part of the symposium “The 2024 Presidential Election: Are We Ready?” at Fordham University School of Law on October 28, 2024. The remarks have been lightly edited, and footnotes have been added, but they retain the form and style of the oral remarks.
