Restraining Judicial Application of the 'Safe Harbor' Provision in the Electoral Count Act

Abstract

The Electoral Count Act of 1887 includes a “safe harbor” to states in resolving disputes in their choice of presidential electors. Congress will treat as “conclusive” a “determination” about “any controversy or contest concerning the appointment” of presidential electors, if that determination is made “at least six days” before the time the electors are to meet. This is a rule governing how Congress handles “the counting of electoral votes as provided in the Constitution.” It is not a judicially-enforceable rule for courts to heed. And it is a rule that state legislature may, not must, heed.

In the aftermath of Bush v. Gore, however, federal courts have wrongly construed the "safe harbor" as a timing mandate placed on courts. A proper understanding of the “safe harbor,” rightly understood through Bush v. Gore, reserves its influence to Congress and, occasionally, to state legislatures. Federal courts should take heed in the event of closely contested elections or recounts in the 2020 presidential election and beyond.

Keywords: electoral vote, electoral college, electoral count act, safe harbor, election law, voting rights, federalism, state legislatures, federal courts, federal judiciary, bush v. gore

JEL Classification: K00, K1, K10, K19, K41