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Commentary

Election Reform's Top Priority: Changing the Electoral College Calendar

[This work draws upon each of our previous research and writing, some of it found here and here, but it is intended to stand on its own as a concise statement of our views on this currently newsworthy topic.] Were this a presidential election year, the Electoral College would have cast its votes yesterday. This day comes too soon after November’s voting. Significant unresolved races this year demonstrate that, despite post-2000 election reforms, more time is needed to settle close races. As Congress contemplates further reform, adjusting the Electoral College calendar should top its agenda. Why require a paper trail of electronic voting, for instance, if there is insufficient time to audit this trail in a presidential election? In 1934, when a constitutional amendment changed the date for presidential inaugurations to January 20th, Congress altered the Electoral College calendar to establish the Monday after the second Wednesday in December (yesterday) as the day for Electoral College voting, and January 6 as the date when Congress counts those votes. The same statutory scheme also sets the fifth Tuesday after Election Day, or six days before the Electoral College votes, as the so-called "safe-harbor" deadline. If states resolve all controversies concerning their choice of presidential electors by this deadline, then Congress is obligated on January 6 to accept these electors’ votes. These dates—set before "telecommunications" was either common parlance or common practice, and long before the advent of overnight delivery services—are no longer necessary for transmitting Electoral College votes to Washington. The Electoral College easily could vote on January 3 with enough time for Congress to review those votes before a January 20 inauguration. (We'd move the date for this review to January 10, but it also could remain January 6.) With presidential electors voting on January 3, Congress could change the safe-harbor to December 31, which in 2008 would give states an extra 22 days to resolve any disputes arising from the popular vote for these electors in November. Lest there be any doubt that states need these extra days, consider some of this year's unsettled races. Whether Democrats or Republicans control Pennsylvania's House of Representatives depends on an ongoing recount. The apparent outcome in Vermont’s election for state Auditor was reversed only last week, when a vote tabulation error was discovered, too late to meet the safe-harbor deadline. Most prominently, litigation over 18,000 undervotes in Florida’s thirteenth congressional district is still unresolved. Similarly, in Washington's 2004 gubernatorial election, the recount that changed the winner from Republican Dino Rossi to Democrat Christine Gregoire was not certified until December 30, 17 days after the Electoral College voted that year. Indeed, the administrative error that caused several hundred ultimately decisive ballots to go uncounted was not rectified until two days after Electoral College voting. Thus, if the Washington gubernatorial recount of 2004 had been halted by a safe-harbor deadline (in the same way that the U.S. Supreme Court invoked this deadline in 2000 to halt Florida's presidential recount in Bush v. Gore), or even if the Washington gubernatorial recount had ended on the day the Electoral College voted (which Bush v. Gore dissenters proposed as the deadline for a state-ordered recount in a presidential election), Washington would have a different Governor. Of course, extending the Electoral College calendar could also increase the period of uncertainty surrounding the outcome of the presidential election. This uncertainty could affect the economy, given the value that the market system places on predictability. This period of uncertainty also would shorten the transition time available for the incoming administration to prepare for office. But in most presidential elections, the Electoral College calendar won't make any difference. For practical purposes, the nation will know the winner on Election Night, or the next morning, as it did when Kerry conceded in 2004. And precisely in that rare situation where the vote is exceedingly close in a state that will determine the Electoral College winner, the process for resolving accurately this state's count of its vote for presidential electors should not be short-circuited by an unnecessarily abrupt Electoral College deadline, as it was in 2000 and could be again in 2008. What is most important is not how quickly the ultimate outcome is determined, but that the result be accepted as fair and accurate. States need time, after Election Day and before the Electoral College votes, to conduct three potentially laborious functions: (1) the verification of provisional ballots as part of the initial certification of election results; (2) the recount of all ballots, conventional and absentee, in those races subject to either an automatic or a permissive recount; and (3) the trial and appeal of any judicial contest of the final certification of the election. The five weeks between Election Day and the safe-harbor deadline are insufficient for completing these tasks in a close race. Moreover, reforms that improve the accuracy of the vote counting process, while intrinsically valuable, may exacerbate the time pressures of the current Electoral College calendar. Verification of the eligibility of provisional ballots is an important reform mandated by the Help America Vote Act of 2002, but it adds a time-consuming step. And if Congress does mandate a manually auditable paper trail of all ballots, that audit may require considerable time. Thus, the 110th Congress's first election reform should be to change the Electoral College calendar to give states until the end of December to conclude the selection of their presidential electors. Even with this extra time, states must work expeditiously to determine the outcome of the popular vote. But states will have a much better chance of fairly and accurately finishing their vote-counting procedures if Congress will give them a total of eight weeks, rather than five, to make the safe harbor.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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