Congress Defuses a Ticking Time Bomb; Thank You, Kansas
Though the January 6 joint session of Congress appeared sedate — even boring — this year, Congress quietly made a crucial decision that will help prevent election subversion in 2028 and beyond. And it’s all thanks to a little-noticed blunder by Kansas.
In the weeks after election day and before Congress certifies the results of the presidential election, governors must certify their respective states’ election results and the identity of the presidential electors committed to the winning candidate. Those certifications go to the National Archives and to the sitting vice president, who then presides over the Jan. 6 joint session. Before 2022, there was no firm deadline for states to submit their certifications, as long as they did so before the electors’ meeting in mid-December. But the landmark Electoral Count Reform Act (ECRA) of 2022, crafted in the wake of the attack on the Capitol in 2021, demands that the governor of each state “shall issue” certifications by a certain date — this time around, by December 11, 2024. Sen. Joe Manchin, co-sponsor of the ECRA, characterized this new provision as a “hard deadline.”
But what happens if a governor misses this new deadline? Do that state’s votes count? And if they don’t, could a governor potentially swing the election by deliberately missing the deadline and thus denying electoral votes to the winning candidate from the other party?
Enter Kansas. Under Kansas law, the state’s chief elections officer — the Secretary of State — was supposed to procure the governor’s signature on the certificate identifying the presidential electors by December 4 — but he did not do so until December 12, one day after the ECRA’s “shall issue” deadline. Suddenly, the question of what happens when a state misses the deadline was no longer hypothetical.
The only remedy in the ECRA for a governor’s failure to meet the deadline was for the winning presidential candidate to obtain a court order directing the governor to do so. And in that event, the ECRA provides that a tardy certificate issued pursuant to a court order would be presumed valid.
But the Trump campaign did not seek a court order, so the only certificate from the Kansas governor was neither fish nor fowl: it was not submitted by the ECRA deadline but also was not a tardy certificate issued pursuant to a court order.
The Kansas electors duly met on the appointed day, cast their votes for Donald Trump and JD Vance, and sent their votes — with the tardy certificate from the governor attached — to Vice President Kamala Harris and the National Archives, where it was required by the ECRA to be open to public inspection. For weeks before the Jan. 6 joint session, the noncompliant Kansas certificate was posted on the National Archives website for all to see.
On January 6, the vice president opened the envelopes containing the electoral votes and the governors’ certificates for each state in alphabetical order, then handed them to the senators and representatives designated to read them and announce the results.
It was now up to Congress to decide whether to count votes by electors whose appointments by the governor did not comply with the explicit mandate of the ECRA. What would it do?
On the one hand, what is the point of a hard deadline in a statute if there are no consequences for missing it? On the other hand, would Congress really reject an entire state’s electoral votes because of one official’s mistake?
Congress provided an unequivocal answer. Sen. Deb Fischer, Republican of Nebraska, announced at the joint session that “the certificate of electoral votes from the State of Kansas seems to be regular in form and authentic,” and Kansas’s votes for Donald Trump and JD Vance were included in the totals — without a single objection.
True, excluding the Sunflower State’s electoral votes would not have changed the outcome this year. But there will come a time, like in 2000 and 2004, when a single state’s votes could tip the scales. And if a state’s electoral votes were lost simply because a governor was tardy in certifying the electors, the election would be vulnerable not just to mistakes but to deliberate efforts to change the results.
So, thank you, Kansas — you have done the country a great service by allowing this issue to be resolved in an election where it did not matter, setting an unequivocal precedent for a time when it will.
About the Author:
Rex VanMiddlesworth is an election law expert and a member of the Executive Board of Keep Our Republic, a non-partisan civic education non-profit. He is also Of Counsel at the law firm of O'Melveny & Myers, LLP, and a Senior Editor at the Advanced Leadership Initiative Social Impact Review.