Lannis Waters/Palm Beach Post
When I introduce myself as an election law professor, the most common response is, “Well, it must be an interesting time for you!”
Of course, “interesting” here is polite code, because American discourse around democracy is grim. Fear abounds, and too often popular rhetoric inflames that fear.
As a scholar of election law, I am somewhat more optimistic. And I have sought to participate as productively as I can to advance the rule of law in our democracy in a few specific ways. I have filed briefs in court to offer my perspective on legal issues and help judges sort out election law issues. And recently I was asked to help lead a new project by the American Law Institute, a longstanding independent body of lawyers and judges in the United States. That project — a “restatement” or extensive summary of the common law — will help clarify, modernize and improve the parameters of election litigation and assist courts when they are confronted with high-pressure election disputes in the future.
I’ve learned some important lessons through my work, but I’ll dig into just one recent development that gives me reasons for hope — a new law to help strengthen presidential elections in 2024 and beyond.
In 2022, Congress passed the Electoral Count Reform and Presidential Transition Improvement Act. I had testified as a witness before the Senate Committee on Rules and Administration in support of it. Senator Susan Collins of Maine and Senator Joe Manchin of West Virginia, a Republican and a then-Democrat, led the joint effort to draft the legislation, which attracted 37 additional co-sponsors in the Senate — 21 Democrats, 15 Republicans and one independent. It was ultimately enacted as part of a budget bill.
The law tried to remedy some of the challenges that have arisen in presidential elections in the last 25 years and address some of the specific issues after the 2020 election. Extensive litigation on behalf of candidates and interest groups had contested the results of the 2000, 2004, 2016 and 2020 presidential elections. The litigation typically lingered weeks after Election Day, and in some cases stoked public doubts about the finality of elections. In response, the 2022 act created firm deadlines for resolving election disputes at the state level to ensure closure and finality.
In 2020, some partisans suggested that federal law allowed state legislatures to step in after Election Day and change the results of the presidential contest. That isn’t permitted — for a variety of reasons — under the federal constitution. But existing statutory language enabled some elections to take place after Election Day if a state failed to make a choice. That language generated public confusion; the new law removes the ambiguity at the source of this confusion.
Another objection to the 2020 outcome suggested that Vice President Mike Pence could refuse to count electoral votes when Congress convened, in joint session as the Constitution demands, to count and certify the electoral vote. In response, the new law expressly limits the role of the vice president when Congress meets for this purpose. It clarifies that the president of the Senate — typically, the vice president of the United States — who presides over the counting of electoral votes, typically on January 6, has no power to count or reject the votes, but instead plays a merely “ministerial” role with no exercise of discretion. While vice presidents historically have not tried to exercise determinative power over the electoral vote count, the law now formally prevents them from doing so.
Additionally, Democrats in 2005 and Republicans in 2021 halted congressional proceedings to debate whether to count certain electoral votes already certified in the states. At the time, procedural rules enabled a single member from both the House and the Senate to object, forcing the joint body to separate for two hours’ debate. These debates became occasions for grandstanding: A majority vote is required in each house to sustain such an objection, and the votes in 2005 and 2021 never came close to meeting that threshold. Going forward, the new law will require 20 percent of the membership of each chamber to file an objection before it could even be heard. Had this rule been in place prior to the 2000 presidential election debacle, no such objections to the electoral vote count would have been considered, much less sustained, in that election or any election since then.
In short, the 2022 act is designed to streamline and defuse the process between Election Day and Inauguration Day.
In my testimony before the Senate committee, I defended the law as constitutional, and I explained how it would improve presidential elections in very practical terms. The hearing showed a strong spirit of bipartisanship. Witnesses across the political spectrum testified in support of the bill, from a former Department of Justice official in the Trump administration to a lead attorney for the Democratic National Committee. Senator Amy Klobuchar of Minnesota opened questioning by asking the five witnesses whether we believed that Congress should ensure that the will of the voters should prevail in presidential elections. With smiles, we all told her that we agreed. The committee ultimately approved the bill with a bipartisan vote of 14-1. It was clear that Republicans and Democrats alike wanted to lower the temperature for future presidential elections.
The experience taught me that genuine bipartisanship is feasible and important, even if it is difficult. It is easy to speak only with people with whom you agree. Instead, we ought to seek out people with whom we disagree but can respect and engage with to find common ground.
As I spoke with senators and their staff members from both parties while they drafted the bill, it was clear how seriously they took their responsibility. The act updated a statute first enacted in 1887. They wanted a renewed law that could last another hundred years.
Watching those senators discuss the Electoral Count Reform Act in committee showed that good-faith conversation and negotiation among people who have profound disagreements on many important subjects may yet yield fruitful legislation. Congress is a deeply unpopular institution that seems to accomplish less than ever, and it is easy to view it cynically. But in that moment, Congress was at its best. Those senators thought hard about how they wanted to limit Congress — themselves and their successors — in future elections and benefit the country after an election, regardless of whether a Republican or a Democrat wins it.
Admittedly, laws can only go so far. Sometimes the law can’t answer questions left to the political process. Heated rhetoric can sow distrust in election results — or, even worse, instigate political violence. Democracy can be messy, but it ought to be peaceful. And I don’t think the outlook for democracy is quite so grim.
The Electoral Count Reform Act is just one new legal development that will make our elections better off. Others are taking shape. Kansas recently made it easier to fix an absentee ballot that carries a mismatched voter signature, and Maryland expanded polling locations to ensure voters can easily travel to the polls. But law can only be a small part of any solution. It takes vigilance from our elected officials in helping pass laws to strengthen elections, and it requires us to do the hard work of negotiating and agreeing to such legislation to make and keep our elections strong.
Derek Muller is a Notre Dame professor of law.