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Miami, FL — Less than a month before the November 3rd election, 40 experts on elections and democracy, including law professors and a former President of the National Association of Secretaries of State, called on Congress to support legislation introduced by U.S. Senator Marco Rubio (R-FL) that would extend the federal safe harbor period for states to determine electors from December 8, 2020 to January 1, 2021 for this year’s presidential election. Doing so would give states the flexibility needed in a pandemic to help ensure each and every legal vote cast is counted. In a Medium post titled, “Americans Should Expect Election Chaos,” Rubio warned how hostile foreign actors like China and Russia are looking to exploit the unprecedented COVID-19 pandemic to sow discord and undermine our democracy. 
 
“We are a group of democracy scholars and experts in election law and administration who are deeply concerned that, due to the unique circumstances of the Covid-19 pandemic, the November election may confront formidable challenges in ensuring that a full, accurate, and reliable count is completed within the current statutory timelines, which were set for more normal times,” the experts wrote. “To avert a crisis that could strain our democracy, we urge you to support the bill introduced by Senator Marco Rubio that would extend the federal safe harbor period from December 8, 2020 to January 1, 2021, and that would extend the Electoral College vote from December 14 to January 2.
 
“In our polarized culture, one side immediately sees sinister motives in almost any suggestion the other side makes,” the experts continued. “But as experts who study the election process, the resolution of disputed elections, and similar matters, we believe Senator Rubio’s bill is good insurance for the integrity of the election and ought to be adopted.”
 
The full text of the letter is below.
 
Dear Senator / Representative,
 
We are a group of democracy scholars and experts in election law and administration who are deeply concerned that, due to the unique circumstances of the Covid-19 pandemic, the November election may confront formidable challenges in ensuring that a full, accurate, and reliable count is completed within the current statutory timelines, which were set for more normal times. Because the unprecedented increase in mail-in ballots could require longer times to process and count a much higher volume of these ballots; because the presidential election contest could be quite close in some states; and because it could take some considerable time to resolve a state-level dispute over the election count, the current federal safe harbor deadline of December 8 for states to determine their electors might not provide enough time for every state to resolve fairly and accurately multiple and overlapping litigation that may arise.
 
To avert a crisis that could strain our democracy, we urge you to support the bill introduced by Senator Marco Rubio that would extend the federal safe harbor period from December 8, 2020 to January 1, 2021, and that would extend the Electoral College vote from December 14 to January 2.
 
To begin with, the existing deadlines do not serve any significant policy interest. Indeed, they originate in 1887, when issues of communication and transformation were completely different. There is no reason that the Electoral College vote needs to take place on December 14th, when that vote then just sits there until the new Congress convenes. For similar reasons, the safe harbor date can be pushed back a few weeks, in case states need that time, without harming the electoral-vote counting process in any way.
 
The extension of these deadlines would not favor or prejudice either political party. And hopefully it would prove unnecessary. Should the 2020 presidential election produce a clear winner or should any disputes at the state level be resolved expeditiously, the federal safe harbor deadline would remain a ceremonial moment on the pathway to the formal election of the next president.
 
However, it is also possible that not all issues will be resolved by December 8. Even in what seemed like normal circumstances in Florida in 2000, a close vote in a major swing state was at great risk of failing to meet this date (and indeed, the constitutional recount process that the Supreme Court endorsed could not be completed within that time, which is why a majority of the Court concluded that the recount had to be terminated).
 
Congress should not wait for a crisis to emerge but should preempt the crisis by legislating in advance. In the event of one or more protracted disputes at the state level, the addition of 24 days to the deadline for determining electors could spare the country a debilitating national political crisis. Otherwise, it may fall to the new Congress (on January 6) to determine the winner of the electoral votes of one or more states, under the troublingly ambiguous provisions of the Electoral Count Act of 1887. This could produce a grave national controversy just two weeks before the inauguration.
 
In our polarized culture, one side immediately sees sinister motives in almost any suggestion the other side makes. But as experts who study the election process, the resolution of disputed elections, and similar matters, we believe Senator Rubio’s bill is good insurance for the integrity of the election and ought to be adopted. The country will not benefit, if the election is contested, from having state counting processes being rushed or even forced to shut down arbitrarily, based on deadlines set decades ago that are not needed today. If even a few states need more time this year than normally to fairly and accurately count all valid ballots and only valid ballots, they should have that time, when it will not compromise Congress receiving the Electoral Votes on January 6th. Time for a calm, unrushed resolution of any issues will help produce as broadly legitimate a national outcome as possible.
 
At this time of ever-more intense polarization of our politics, Senator Rubio’s bill would provide a welcome element of relief and protection. We urge you to support it, and even to co-sponsor it.
 
Sincerely,
 
Tabatha Abu El-Haj 
Professor of Law, 
Drexel University Kline School of Law 
 
Bruce Ackerman 
Sterling Professor of Law and Political Science, 
Yale Law School 
 
Stephen Ansolabehere 
Thompson Professor of Government
Harvard University 
 
Lonna Atkeson 
Professor of Political Science; 
Executive Director, Institute for Social Research, 
University of New Mexico 
 
Julia R. Azari 
Associate Professor and Assistant Chair, Department of Political Science, 
Marquette University 
 
Richard Briffault 
Chamberlain Professor of Legislation,
Columbia Law School 
 
Lisa A. Bryant 
Associate Professor of Political Science,
California State University, Fresno 
 
Barry C. Burden 
Professor, Department of Political Science; Director, Elections Research Center, University of Wisconsin-Madison 
 
Bruce Cain 
Professor of Political Science, 
Stanford University 
 
Larry Diamond 
Senior Fellow, Hoover Institution & Freeman Spogli Institute, 
Stanford University 
 
Joshua Douglas 
Ashland Inc-Spears Distinguished Research Professor of Law, 
University of Kentucky Rosenberg College of Law 
 
Joseph Fishkin 
McLean Professor in Law, 
University of Texas at Austin School of Law 
 
Edward B. Foley 
Ebersold Chair in Constitutional Law; Director, Election Law at Ohio State, Ohio State University Moritz College of Law 
 
Larry Garber 
Expert Consultant, The Carter Center Adjunct Professor, 
Arizona State University Law School 
 
James A. Gardner 
SUNY Distinguished Professor, 
Bridget and Thomas Black Professor, Research Professor of Political Science,
SUNY University at Buffalo School of Law 
 
Anthony J. Gaughan 
Professor of Law, 
Kern Family Chair in Law, 
Drake University Law School
 
Trey Grayson 
Former Secretary of State, Kentucky;
Former President, National Association of Secretaries of State (NASS) 
 
Rebecca Green 
Professor of the Practice of Law, 
Co-Director of the Election Law Program,
William & Mary Law School 
 
Abner S. Greene 
Manning Professor of Law, 
Fordham Law School 
 
Paul Gronke 
Professor of Political Science; 
Director, Early Voting Information Center,
Reed College 
 
Richard L. Hasen 
Chancellor’s Professor of Law and Political Science, 
University of California, Irvine 
 
Steven F. Huefner 
O’Neill Professor in Law and Judicial Administration;
Director of Clinical Programs;
Deputy Director, Election Law, 
Ohio State University Moritz College of Law 
 
Samuel Issacharoff 
Reiss Professor of Constitutional Law,
NYU School of Law 
 
Kevin R. Johnson 
CEO, Election Reformers Network 
 
Michael S. Kang 
Karnes Research Professor of Law,
Northwestern Pritzker School of Law 
 
David Kimball 
Professor and Interim Chair of Political Science, 
University of Missouri, St. Louis 
 
Vladimir Kogan 
Political Scientist, 
Ohio State University 
 
Lawrence Lessig 
Furman Professor of Law and Leadership,
Harvard Law School 
 
Michael McConnell 
Mallery Professor, 
Director of the Constitutional Law Center,
Stanford Law School 
 
Brendan Nyhan 
Professor of Government, 
Dartmouth College 
 
Norm Ornstein 
Resident Scholar,
American Enterprise Institute 
 
Daniel R. Ortiz 
Horvitz Distinguished Professor of Law,
University of Virginia School of Law 
 
Richard Pildes 
Sudler Family Professor of Constitutional Law, 
NYU School of Law 
 
Michael J. Pitts 
Professor of Law, 
Vice Dean, 
Indiana University Robert H. McKinney School of Law
 
Kate Shaw 
Professor of Law, 
Co-Director of the Floersheimer Center for Constitutional Democracy, 
Benjamin N. Cardozo School of Law 
 
Nicholas Stephanopoulos 
Professor of Law, 
Harvard Law School 
 
Charles Stewart 
Sahin Distinguished Professor of Political Science, 
Massachusetts Institute of Technology 
 
Mara Suttmann-Lea 
Assistant Professor of Government,
Connecticut College 
 
Franita Tolson 
Professor of Law, 
Vice Dean for Faculty and Academic Affairs, 
University of Southern California Gould School of Law 
 
Charles Zelden 
Professor of History and Political Science,
Nova Southeastern University