Yesterday, I linked to this site, where the Michigan Law Review First Impressions has a symposium on Electoral College Reform.I have gone through the first three articles and have a few comments which will appear in the next few posts.
The first article, by Ohio University Moritz College of Law Professor Dan Tokaji makes some impressively cogent remarks. Tokaji focused on the timetable following an election, when all sorts of legal wrangling takes place at the same time as canvassing and recounts, noting that the current "Safe Harbor" time frame is simply too short. The safe harbor is the 35 day period following an election for the President in which the states can conclusively decide who their electors will be and Congress is obliged to accept those electors. The problem as Tokaji points out is that it is difficult to do the proper canvassing of returns, conduct a recount, verify provisional ballots and allow the courts to hear challenges in that 35 day period. Tokaji recommends extending the safe harbor time frame by at least two weeks, which may help ease the time pressures. A sound recommendation that I hope makes it to the ears of Congress as I have yet to see any other rational means for handling what is expected to be, at some point, a deluge of electoral contests and litigation.
While it is certainly preferable to not have litigation in the aftermath of an election, particularly since such efforts will almost always cast doubts on the outcome of an election and the legitimacy of the election, having more time to adjudicate legitimate challenges will help calm the public fears. The 2000 election debacle also needs to be addressed. One of the issues with election challenges is the lack of consistency and clear standards as to what can be challenged and what cannot. To be sure, each state has its own laws, as Tokaji pointed out, but that does not mean Congress can't make laws in this arena. The Constitution gives Congress the right to supersede state election laws when it comes to elections for federal office.
Tokaji only tangentially addresses the issue in light of Ohio's laws. But his example does highlight a troubling issue. Ohio law says that in federal election challenges, federal law shall prevail. However, the federal law says to use state standards. The circular reference is obvious and leaving it to the courts is a bad policy decision. There is no telling how many other states have a similar circular reference and really, only Congress can address it. Particularly, when it comes to the election of the President, one standard for challenges must be present nationwide, both to add consistency of application but also to legitimize the election should one candidate challenge the results in one state.
Ohio's problem, in particular, is that the Supreme Court is elected and thus, at least in part, is a political body. Assuming the judges there can set aside their partisan bias (and I have no reason to suspect not), their actions, because they are elected and their partisan biases are known, will always call into question their decisions. The feeling in the nation following Bush v. Gore will permeate even further if state political bodies, teh legislature, the governor or even the courts, are perceived, rightly or wrongly, to be swaying the election based on partisan preferences. A single national standard and interpretive rules are needed. Of course, that will not be easy.