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2. Clarify that after Election Day a state legislature may only provide a new means to choose electors if there has been a major natural disaster or a similarly catastrophic event

The ECA currently establishes a timeline by which states must complete different steps in the process of determining their slate of electors and sending them to Congress. In the case that a state has “failed to make a choice” by Election Day, the law gives state legislatures the ability to establish a means of designating those electors after Election Day. The history shows that Congress intended the provision to apply only in the case that a major natural disaster or similarly rare and catastrophic event disrupted Election Day. This proposal would make that meaning clearer and more explicit.

The Case For

Supporters argue that this clarification is necessary to prevent a state legislature from overturning the people’s decision in an election simply because the legislature did not like the results. A broad interpretation of the existing language in the ECA might be read to give the legislature an excuse to overturn the results based, for example, on unsubstantiated allegations of voter fraud, voter suppression, or manipulation of voting machines.

Proponents argue that the clarification would still permit states flexibility if a genuinely catastrophic event kept people from voting while also preventing politically motivated manipulation.

The Case Against

Opponents argue that this proposal unwisely limits states’ flexibility in dealing with the countless ways that the integrity of the elections can be compromised and corrupted. They contend that any list of events that Congress could draft now would inevitably fail to include problems that might arise in the decades to come.

Opponents further argue that the people’s representatives rather than courts are the best institution to respond to widespread lack of confidence in the reliability of election results, regardless of the cause of those doubts.