Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election. This problem surfaced in Florida’s 2000 presidential election and might well have resulted in Congress deciding the election, if not for the Supreme Court’s intervention in Bush v. Gore. The opinion in that case was issued on the safe harbor date, December 12, 2000. The Court’s disposition of Bush v. Gore, which effectively ended the recount process, was partly predicated on Florida’s intent to avail itself of the safe harbor date. Four years later, a replay of this crisis nearly occurred in Ohio. If the vote had been a bit closer and Senator Kerry had challenged the result, Ohio would have been hard pressed to complete its canvass, recount, and contest process in time. This Commentary addresses the tension between the federally prescribed Electoral College dates and state procedures for resolving close elections. I first discuss the federal timetable for selecting electors and counting their votes. I then move to a discussion of the difficulties in fitting state post-election proceedings into the federal timetable. Finally, I propose changes to federal law designed to give states more time to resolve postelection disputes.
Daniel P. Tokaji,
An Unsafe Harbor: Recounts, Contests, and the Electoral College,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol106/iss1/14