Elector’s Day, not Election Day, could be key to saving the vote

In our outrage against “fake electors” from the 2020 election, we are setting up a clear strategy for stealing the presidential election in 2024. 

After the events of Jan. 6, 2021, we set out to map every strategy we thought was possible to flip an election against its legitimate winner. Our forthcoming book presents several strategies that would certainly fail, and a few that might succeed. 

But the recent prosecutions of “fake electors” highlight a weakness we identify in our book and the real threat it presents in 2024. 

Imagine the following scenario: The initial results in a swing state favor one candidate, but as the count continues, the results are trending against that candidate. Supporters of the presumptive winner press officials to “stop the count.” Maybe a trial court in a few counties finds that certain ballots should be excluded, but the state supreme court has yet to rule in the case. 

Regardless of the reasons, six days before the Electoral College is to vote, the governor certifies the presumptive winner despite ongoing legal challenges in the courts and ignoring the belief of many that the presumptive winner is not the actual winner. 

What should happen in that case, we both believe, is that both sets of electors — call one the “presumptive slate,” the other the “contingent slate” — should meet on Electors Day and cast their ballots. That act would then preserve the opportunity for courts to determine who won the election. Once that determination is made, a final certification reflecting any court’s decision could be presented to Congress on Jan. 6. 

But both the amendments to the Electoral Count Act passed last year and the wave of prosecutions of “fake electors” since 2021 make that sensible strategy especially dangerous. 

The Electoral Count Reform Act sets a hard deadline six days before the day the electors vote for a governor to certify the electors’ appointment. And it permits a court to order the governor to update their certification, but only up to the time when the electors vote. The Electoral Count Reform Act thus sets the lists of presumptive electors in stone by the day they vote, even if courts later determine that their candidate had actually lost. 

Even if you ignore the Electoral Count Reform Act, after the prosecutions in Georgia and Michigan, individual electors would likely be fearful that they would be committing crimes under state law for meeting and voting without a certification already in hand that they are the electors for that state. The result is that the time to resolve election disputes is compressed to just over a month after Election Day.

This is a substantial risk to the election process. It would be easy for state officials to slow the process of definitively resolving the election results by dragging their feet through Elector’s Day. If a presumptive winner fears what might come later, they have a strong incentive to demand certification even though the disputes haven’t yet been fully resolved. And if the governor doesn’t certify any slate of electors by the deadline, then the Electoral Count Reform Act seems to prohibit Congress from counting any electoral votes from the state at all. 

Either option is vulnerable to strategic manipulation, and no matter what, states will be under extreme pressure to settle election disputes under an unrealistically accelerated timeline. 

We don’t doubt that there were people — including, perhaps, electors — in the 2020 election who acted in bad faith in their efforts to flip the election from Biden to Trump. But we also believe that when an elector has a good faith basis for believing that their candidate could prevail before Jan. 6, that elector should cast their ballot on Electors Day. If they don’t, then when the results are finally determined by the legal system, if the voters were with them, there will be no ballots by the electors for Congress to count. 

It is easy to focus on the last crisis. But if we’re to ensure that the winner of the 2024 election is the person who actually prevailed at the ballot box, we must make sure that there is ample time to count the votes. That certainly doesn’t require “fake electors.” But not every contingent elector is a fake. And we need to be clear about this now so that the arguments used against the 2020 electors don’t haunt 2024. 

Congress could effectively eliminate this risk if it followed the recommendation of Sen. Marco Rubio (R-Fla.) and shifted Electors Day to early January. In modern times, there’s no reason for the long gap between when electors vote and when Congress certifies their vote. 

Alternatively, Congress could amend the Electoral Count Reform Act to encourage electors in contested states to cast their ballots on Electors Day and submit them as “contingent,” pending resolution of litigation within the state.

Either change would give the legal process more time to make certain, as Justice Elena Kagan promised in the electors’ case Chifalao v Washington that “here, We the People rule.” 

As things are, the rules create an incentive to mischief — the last thing America’s democracy needs just now. 

Lawrence Lessig is a professor at Harvard Law School. Matthew A. Seligman is a fellow at the Constitutional Law Center at Stanford Law School. They are co-authors of the forthcoming book, “How to Steal a Presidential Election,” with the Yale University Press.