Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles. We applaud your bipartisan efforts to update the Electoral Count Act to protect the will of the voters and ensure the peaceful transfer of power.
We write to express our strong view that in order to be meaningful, Electoral Count Act reform must protect voters against attempts by state officials as well as federal officials to overturn the results of a presidential election.
An alarming number of political candidates for state offices that have a role in overseeing elections continue to spread lies about the 2020 election, and some have hinted that they would attempt to use their authority to overturn results unfavorable to their party.1 In most cases, these actions would be prohibited by state law or the state constitution. We agree with the principles set forth by the American Law Institute that efforts to disqualify ballots should be subject to judicial review, and that state officials should be bound by the laws in place before election day.2
POGO is concerned about the possibility that a partisan legislature or governor could rewrite state law to allow pretextual refusals to certify an election, or to discount votes from certain cities or towns that tend to favor the opposite party.3 Some state officials have moved to strip state courts of their ability to enforce state constitutions’ voting rights provisions.4 Therefore, Congress must guarantee that courts have the authority to ensure that legally cast ballots in a presidential election are counted, certified, and given effect, not set aside based on false claims of fraud.
Preventing state officials from overturning election results is well within Congress’s constitutional authority.
The Supreme Court has long recognized that Congress has broad regulatory authority over federal elections, including elections for president.5 That authority is at its broadest when Congress is protecting citizens’ equal access to the right to vote. Four separate amendments to the Constitution prohibit states from restricting voting rights based on race (the 15th Amendment), sex (the 19th Amendment), failure to pay a poll tax (the 24th Amendment), or age of all citizens over 18 (the 26th Amendment.) The 14th Amendment’s guarantees of equal protection of the laws, and citizenship to all people born and naturalized in the United States, also apply with special force in voting rights cases.6
All five amendments authorize Congress to pass legislation to enforce their provisions. Congress has done so repeatedly over the years. Many provisions of the voting rights statutes Congress has passed govern the counting and tabulation of votes after they are cast, including but not limited to the following sections of the U.S. Code:
- 52 U.S.C. § 10101, which requires election officials to apply equal standards in evaluating citizens’ eligibility to vote, defining a vote to include “all action necessary to make a vote effective including … having such ballot counted and included in the appropriate totals of votes cast”;
- 52 U.S.C. § 10307, which states in part that “no person acting under color of law” can “willfully fail or refuse to tabulate, count, and report” a valid vote;
- 52 U.S.C. § 10308, which imposes criminal penalties for depriving individuals of the right to vote or to have their vote counted, destroying or defacing voting records, or conspiracy to violate or interfere with voting rights;
- 52 U.S.C. § 20511, which makes it a crime to deprive the “residents of a State of a fair and impartially conducted election process,” including by tabulation of fraudulent ballots;
- 52 U.S.C. §§ 20701-705, which require election officers to retain and preserve records of federal elections, that make it a crime to tamper with or destroy election records, and that authorize the attorney general and federal courts to require inspection or production of those records; and
- 52 U.S.C. § 21802, which sets forth requirements for the use of provisional ballots, including a requirement that officials create a mechanism for citizens to determine whether their ballot was counted.
Most of these statutes, though, rely on enforcement by the Justice Department, often through criminal prosecution that could only occur too late to guarantee a fair election. Congress should act to remove any doubt that courts have the authority to hear cases brought by private citizens, and to specifically require that those citizens’ votes be counted, certified, and given effect in presidential elections.
Even during the Jim Crow era, when the equal protection and voting rights amendments went almost entirely unenforced, the Supreme Court upheld Congress’s authority to protect a fair and accurate vote count. In United States v. Mosley, the court upheld the conviction of county officials on federal civil rights charges for refusing to count votes from 11 precincts, stating that “the right to have one’s vote counted is as open to protection by Congress as the right to put a ballot in a box.”7 Congress must act to protect that right, and prevent a stolen presidential election.
Director of The Constitution Project at POGO
States United Action, Replacing the Refs: Tracking the Trend of Election Deniers Running for Statewide Office in 2022 (2022), https://statesuniteddemocracy.org/resources/replacingtherefs/; Rosalind Helderman, Isaac Arnsdorf, and Josh Dawsey, “Doug Mastriano’s Pa. victory could give 2020 denier oversight of 2024,” Washington Post, May 18, 2022, https://www.washingtonpost.com/politics/2022/05/18/doug-mastrianos-pa-victory-could-give-2020-denier-oversight-2024/; Ronald Brownstein, “Election deniers want to control the 2024 election. And they’re getting closer,” CNN, May 24, 2022, https://www.cnn.com/2022/05/24/politics/midterm-election-2022-georgia-false-claims-trump/index.html; Daniel Dale, “Fact-checking Kari Lake, serial promoter of election lies and earlier frontrunner in GOP primary for Arizona governor,” CNN, October 6, 2021, https://www.cnn.com/2021/10/16/politics/fact-check-kari-lake-arizona-governor-election-lies/index.html; Tim Reid, Nathan Layne, and Jason Lange, “Special Report: Backers of Trump’s false fraud claims seek to control next elections,” Reuters, September 22, 2021, https://www.reuters.com/world/us/backers-trumps-false-fraud-claims-seek-control-next-us-elections-2021-09-22/.2 Bob Bauer, Jack Goldsmith et al. for the American Law Institute, “Principles for ECA Reform,” April 4, 2022, https://www.ali.org/media/filer_public/31/27/312774df-88a5-4cbe-b6b0-0fd036cd3a95/principles_for_eca_reform.pdf. 3 See Richard L. Hasen, “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States,” Harvard Law Review Forum 135 (Updated April 20, 2022): 279-280, 290-292, https://dx.doi.org/10.2139/ssrn.3926381. 4 Adam Liptak, “Supreme Court May Hear ‘800 Pound Gorilla’ of Election Law Cases,” New York Times, June 6, 2022, https://www.nytimes.com/2022/06/06/us/politics/supreme-court-state-legislatures-elections.html. 5 Burroughs v. United States, 290 U.S. 534 (1934). 6 See Reynolds v. Sims, 377 U.S. 533, 562 (1964). The court found that “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized” on equal protection grounds. 7 United States v. Mosley, 238 U.S. 383, 386 (1915).