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

81 Ohio State Law Journal Online 221 (2020)

5 Pages Posted: 30 Jun 2020 Last revised: 16 Aug 2021

Date Written: June 5, 2020

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

Suggested Citation

Muller, Derek T., Restraining Judicial Application of the 'Safe Harbor' Provision in the Electoral Count Act (June 5, 2020). 81 Ohio State Law Journal Online 221 (2020), Available at SSRN: https://ssrn.com/abstract=3620140

Derek T. Muller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
56
Abstract Views
1,512
Rank
669,482
PlumX Metrics