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5. Clarify that Congress must honor courts’ rulings in ECA disputes

After Election Day in 2020, numerous lawsuits were taken to state and federal court, as happens after many elections. Those lawsuits addressed a wide range of allegations of voter fraud and other improprieties. The existing ECA takes some steps towards ensuring that Congress follow the decisions made by courts in those cases. For example, it says that if a state has provided a means of resolving election disputes “by judicial or other methods” that such rulings “shall be conclusive.” Still, there is wide agreement that the law is convoluted and incomplete on this point. Many have proposed a clearer provision that, if courts have decided a question about whether a state has validly determined its electors, on January 6 Congress must count those electors’ votes.

Under ECA currently, as well as with this clarification, courts do not play a substantive role in appointing electors. The Constitution clearly assigns that responsibility to the states. Instead, courts play the limited role of determining which electors the states had already appointed according to the laws in place on Election Day.

The Case For

Supporters of clarifying that Congress must honor courts’ decisions in ECA disputes observe that members of Congress raised objections on January 6, 2021, even though many of those objections had already been rejected by the courts. They also argue that courts are better suited for resolving election disputes than politicians. Proponents observe that our legal system recognizes that while Congress is well-suited to draft and enact legislation by balancing competing policy concerns, courts are better suited to resolve contested questions of law and fact that arise in a particular dispute.

Supporters further observe that courts resolve litigation about presidential elections every cycle, including the U.S. Supreme Court in 2000 in Bush v. Gore, and the dozens of decisions in 2020 that rejected President Trump’s claims of election fraud. Proponents observe that the proposal would simply ensure that in the future, Congress respects the results of those judicial decisions, as it always has in the past.

The Case Against

Opposition to clarifying that Congress must honor court rulings in ECA disputes come from opposing sides. On one side, some argue that any ECA update should go further than clarifying the existing understanding of courts’ roles under the ECA. They argue that federal courts should be given an expanded role. These opponents argue that judges in state courts are often less independent and more politically motivated, because in many states, judges are elected rather than appointed for life, like federal judges. With rising political pressures in our bitter partisan times, they argue, the independence of federal courts is needed.

Other opponents of clarifying that Congress must honor court rulings argue that the role of courts in election disputes should be even more limited than it is now, especially the role of federal courts. Many of the opponents in this camp argue that the Constitution explicitly grants the authority for determining how a state chooses its electors to state legislatures. These opponents argue that this is a wise constitutional provision because state legislatures are elected by the people and are closest to the people.