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2024 Election Questions and Answers

10/30/2024

The legal landscape governing elections has changed since January 6, 2021. The Electoral Count Reform Act (ECRA) was passed in December 2022, adding to and clarifying the Electoral Count Act, which dated from 1887.

What does the Electoral Count Reform Act (ECRA) do that we did not have in place during the last Presidential election?

The ECRA provides much-needed clarity for the timeline and procedures of a Presidential election, including by:

Replacing the Electoral Count Act’s (ECA)’s problematic “failed election” provision, which has been improperly used to suggest that a state legislature could appoint electors itself, after voters had cast ballots, if the legislature declared an election “failed.” The ECRA establishes that each state’s electors must be appointed pursuant to the rules in place on Election Day, with a limited exception for extending the period to cast votes in true emergencies, like a public health crisis or a hurricane/earthquake.
Setting a deadline for each state to certify its appointment of electors and clarifying that the governor of each state is the default official tasked with such certification.
Creating an expedited pathway for candidates to bring legal challenges in federal court concerning a state’s certification of electors, which seeks to ensure the timely resolution of disputes and conclusively render a decision on the results before the electoral votes reach Congress.
Specifying that the vice president’s role in overseeing Congress’s counting of electoral votes is “ministerial,” that is, not discretionary.
Whereas previously, one lone member of Congress could object to a state’s electoral votes, ECRA raises the required threshold for congressional objections to one-fifth of the members of each chamber of Congress, reducing the risk of frivolous or bad-faith objections to a state’s certified election results.

Can Georgia County Election Board members refuse to certify the election results for any reason, or not send their results to state officials?

No, (as described in the last Edition of The Kicker). Under Georgia law, if a board member refuses to certify, emergency court orders could be filed to compel officials to follow the law. If they do not, the court then has the right to replace the local official or press criminal charges. It is also important to note the law protects citizens’ right to vote and for our vote to count. Any citizen (or group of citizens) could file suit against the election board member for violating that right. Counties must certify by November 12, so there is time to compel them to do so before December 11, and state election officials can intervene or even go to federal court to force certification.

What if the state misses the December 11 deadline, or the Governor refuses to certify?

There is a process under the new Electoral College Reform Act for a specially convened 3 judge Federal Court in the state at issue to hear it on an extremely expedited basis and rule on any disputes. The ruling can be appealed directly to the Supreme Court.
The 3 judge panel will be ruling on who won the popular vote, so even a rogue governor, SOS or state legislature cannot stop it.
Even the Supreme Court’s ruling has to happen before the Electoral College Voters meet and cast their votes on December 17th. This is a statutory mandate.

Could we have a scenario with fake electors again?
No. By establishing these detailed rules and clearly assigning the certification responsibility to the governor (or a state’s designated alternative executive official), the ECRA prohibits anyone besides the legitimate electors from falsely claiming to represent their state in the Electoral College.

What if Congress or the Vice President attempts to stop certification or refuses to certify on January 6th?
The new law makes clear that the VP role is ministerial only. It takes a one-fifth vote from each chamber objecting in writing to the count of a particular state to cause action, and there are only two possible objections: One or more electors were not lawfully certified, or that the electoral vote itself was not lawfully cast. For a good presentation on the entire process, click here.