A-Introduction

Speaker of the House Nancy Pelosi, D-Calif., and Vice President Mike Pence officiate as a joint session of the House and Senate convenes to confirm the Electoral College votes cast in November's election, at the Capitol in Washington, Wednesday, Jan. 6, 2021. (AP Photo/J. Scott Applewhite)

For very different reasons, leaders of both parties have been questioning whether we can trust the results from our elections. A lack of faith in our election outcomes on both the left and right poses a serious threat to American self-government. The ability to trust that our representatives have been determined by the voice of the people is the bedrock of the most successful republic in history.

Both the left and right have pursued elections measures that are unrealistic this year because the other side vigorously opposes them. Efforts to find measures wise enough to attract support across the partisan divide are, however, making impressive progress. Those efforts include the work by a bipartisan group of roughly 16 senators led by Senators Manchin (Democrat – West Virginia) and Collins (Republican – Maine). This is largely the same group with whom we successfully worked on infrastructure legislation last year.

Several of the most influential senators in this group encouraged us to pick this issue because they believe we could play a significant role by demonstrating whether, and where, broad consensus exists among the American people. Even more than on our previous issues, Congress is eager to hear what CommonSense Americans think about elections legislation.

This brief provides you with information to form your own judgment about the wisdom of legislative proposals under active consideration in four areas:

Electoral Count Act (ECA)—Passed by Congress in 1878, the ECA establishes how and when states certify and send the results of the presidential election to Congress. It also establishes how Congress counts the electoral votes and resolves disputes.
Presidential Transition Act (PTA)—The PTA governs how and when a president-elect receives a range of resources so that they can prepare to lead effectively as soon as they are sworn in.
State and Local Funding—Congress is considering proposals to increase federal funding for state and local governments to administer elections.
Election Worker Protection—Several measures have been proposed to protect election workers against growing threats.

Elections Experts

CommonSense American is grateful to the more than 30 top elections experts and leaders in the nation who helped us develop this brief. They come from across the political spectrum and provided invaluable assistance in our effort to represent the proposals accurately and the competing perspectives fairly.

We also express our thanks to the 11 of our 30 advisors who joined us when we announced our results on June 27.

CommonSense American is the final author of this brief. Any inadequacies are ours.

Trey Grayson

Former Republican Secretary of State in Kentucky, President of the National Association of Secretaries of State, Chair of the Republican Secretaries of State Association. Director of Harvard University’s Institute of Politics. Special thanks to Trey, also a founding NICD board member, for his considerable work helping us integrate the insights from all the other experts into a single, coherent brief.

Bob Bauer

White House Counsel to President Obama, former Co-Chair Presidential Commission on Election Administration, Professor of Practice and Distinguished Scholar in Residence at NYU School of Law.

Ben Ginsberg

Counsel to Bush-Cheney and Romney-Ryan campaigns; former Counsel to the Republican National Committee, National Republican Senatorial Committee, and National Republican Congressional Committee; and former Co-Chair of Presidential Commission on Election Administration.

Edward B. Foley

Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law, Ohio State University

Rick Pildes

Sudler Family Professor of Constitutional Law, NYU School of Law

Courtney Simmons Elwood

Former CIA General Counsel in Trump Administration and former Associate White House Counsel in George W. Bush Administration

Steve Bradbury

Former General Counsel, Department of Transportation in Trump Administration and former Head of Office of Legal Counsel, Department of Justice in George W. Bush Administration

Judge Michael McConnell

Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, Senior Fellow at the Hoover Institution, former Judge on the United States Tenth Circuit Court of Appeals

Jack Goldsmith

Learned Hand Professor of Law, Harvard Law School; former Assistant Attorney General, Office of Legal Counsel in George W. Bush Administration

Judge J. Michael Luttig

Former Judge on the United States Fourth Circuit Court of Appeals; former Associate White House Counsel, Reagan Administration

Matthew Seligman

Fellow, Center for Private Law, Yale Law School.

Rick Hasen

Professor and Director, Safeguarding Democracy Project, UCLA School of Law; founding co-editor of Election Law Journal

David Stafford

Supervisor of Elections, Escambia County, Florida

Michael Herz

Arthur Kaplan Professor, Cardozo Law School; former Chair of ABA’s Section of Administrative Law and Regulatory Practice

Kate Shaw

Professor and Co-Director of the Floersheimer Center for Constitutional Democracy, Cardozo Law School.

Norm Ornstein

Senior Fellow Emeritus, American Enterprise Institute (AEI) and former Codirector, AEI-Brookings Election Reform Project.

David Becker

Executive Director and Founder of Center for Election Innovation & Research and former Director of the elections program and The Pew Charitable Trusts

Charles Stewart Ⅲ

Kenan Sahin Distinguished Professor of Political Science, MIT; Founding Director, MIT Election Data & Science Lab; author of The Cost of Conducting Elections co-produced with NICD’s CommonSense American program