Electoral-College Reform Requires Change of Timing

Posted June 14, 2004 at 3:50pm

This is a modest proposal to reform the Electoral College. No, it would not abolish the Electoral College, just change its timing.

In 2000, the U.S. Supreme Court called off the Florida recount because it believed that the recount could not be concluded in time to conform to the schedule established by federal statute for the electoral college.

One of the Florida Supreme Court justices, whose position was upheld by the Supreme Court, analogized the Gore camp’s predicament to a quote from Vince Lombardi: “‘We didn’t lose the game, we just ran out of time.’” But running out of time should not control the outcome in 2004.

Under the federal statute, each state’s presidential electors are to meet on the first Monday after the second Wednesday in December. If a state appoints its presidential electors at least six days before that date, then its choice of electors cannot be overridden. The U.S. Supreme Court in Bush v. Gore believed it was imperative to block the recount ordered by the Florida Supreme Court because the recount could not be completed by the six-day cutoff before the electors’ meeting.

But the aftermath of the Bush v. Gore decision, no one seriously examined the question of whether the federal statutory dates make any sense. Fearing endless debates about whether the Electoral College should be completely abolished, no one looked at the peculiarities of the federal law. But there’s still time for Congress to do so this year.

Congress should amend 17 words in the statute to push those dates into January, so that any state recounts and contests that occur this fall can proceed at a more orderly pace.

The federal statutory scheme, first adopted in 1792, provides the dates for four events: (1) the states’ appointing their electors, on Election Day; (2) having the electors meet and vote; (3) reporting the results to Congress; and (4) the Congressional counting.

Congress has changed the dates on which those events are to occur five times, most recently in 1934 in response to the ratification of the 20th Amendment to the Constitution, which moved the date of inauguration back from March 3 to Jan. 20.

In 1934, the Roosevelt administration recommended to Congress that the period between Election Day and the date of the electors’ meeting be set at 41 days. Records reveal that a government attorney chose the 41-day period arbitrarily, without any further explanation.

Congress, without any legislative explanation, went along with this change even though it significantly shortened the period from its pre-existing statutory length.

One Member of Congress, Judiciary Committee Chairman Hatton Sumners (D-Texas), did speak out against the shortened period during the House debate, and In subsequent years, Sumners kept up the drumbeat, noting that it “requires no great imagination to visualize what might develop in a close election when feeling was running high with a belief that wholesale fraud had been perpetrated in one or more pivotal States with no possibility of a final judicial determination.”

Sumners’ “serious situation” arose in 2000, and it could easily happen again this year. An era of electronic communication and overnight couriers, Congress should immediately lengthen the period between Election Day and the date of the electors’ meeting.

The electors’ meeting should occur as few days as possible before the Jan. 6 Congressional counting date. The six-day deadline for a state’s choice of electors should be changed to the new date for the electors’ meeting. And delivery of the electors’ votes to Congress should be accomplished by any rapid and secure method, not just by registered mail as is currently required.

Making the date, say, Jan. 3, would provide an additional four weeks this year for an unrushed review.

We should not be hamstrung by a redundant and slow transmission scheme built for an earlier time. The states should have the maximum time, within the framework of the existing November election date and the Congressional counting date, to resolve any contested elections. This time, the game clock should not control the outcome.

Leonard M. Shambon, a counsel with Wilmer Cutler Pickering Hale and Dorr, served as assistant to the co-chairman of the Ford-Carter Commission on Election Reform.