Next week, the Senate is scheduled to begin debate on whether the filibuster should continue to block consideration of critical voting rights legislation. While simple, filibuster-immune majorities in heavily gerrymandered, Republican-controlled state legislatures across the nation are imposing partisan barriers to the equal freedom to vote, the rules of the Senate require a supermajority to even debate countering this attack on democracy. As the filibuster has evolved, 41 senators can block consideration of voting rights reform, which means that senators representing as few as 21 percent of America have the power to veto any remedy to this gross violation of democratic principles.
In the face of this challenge, some suggest we change the subject. Yes, they concede, voting rights legislation is important. But addressing the filibuster is just too hard. And rather than confronting that difficulty head-on, Democrats, they insist, should instead take up reform of the 1887 Electoral Count Act. That act governs the process for counting the electoral votes. And as the last election reminded us, the Rube Goldberg mechanisms of that statute are in desperate need of repair. Here’s something, proponents of this approach insist, that Congress could accomplish. Let’s take the victory, and move on!
There is no doubt that the Electoral Count Act must be updated. Its complex and, in parts, incoherent structures may work fine so long as everyone is acting in good faith. But in its complexity, the act leaves too much to partisan gamesmanship. The republic dodged a bullet on Jan. 6 because of the courage of Vice President Mike Pence, the resolve of Majority Leader Mitch McConnell, and the bravery of state election officials in swing states across the nation. Those good acts, however, are not guarantees. And as many now fear, partisans in 2024 could well exploit holes in the ECA, and leave America without a president actually elected by the people.
But it would be a profound mistake for Congress to rush the consideration of ECA reform, because too few in Congress have reckoned with the dangerous constitutional theory that threatens to upend any effort by Congress to guide the process of electing the president.
The 1887 Electoral Count Act took for granted that Congress had the power to regulate the process of counting electoral votes. But a nascent theory first birthed by Chief Justice William Rehnquist in Bush v. Gore, and now echoed by at least four justices on the current Supreme Court, could scuttle the foundation for any reform to the Electoral Count Act. It could certainly sabotage any statute that adopted the framework of the 1887 law without substantial modification. And new details of some of the proposed changes to the ECA published in the Washington Post on Tuesday did not include any portion addressing the threat posed by this “independent state legislature theory.”
According to that theory, the only constitutionally relevant actors in the counting of electoral votes are state legislatures and the vice president. At its extreme, the theory holds that legislatures retain the power to appoint or remove electors “at any time” prior to the final count in Congress, even after a state’s popular vote has been held and counted. This obviously would leave the door open to a partisan state legislature undoing the will of its voters after the fact if it didn’t like an election outcome. The ECA firmly rejects independent state legislature theory. But proponents of legislature power insist the ECA is unconstitutional. That was Rep. Louie Gohmert’s claim in litigation that he began in Texas in 2020 to try to convince the Supreme Court to allow state legislatures to overturn the last presidential election. There is nothing to indicate that he or any of the state legislature extremists have rethought their theory.
The “independent state legislature theory” is wrong as a matter of constitutional law. But it would be a mistake of constitutional politics to draft a new ECA that simply ignored it. Instead, Congress should devote extended hearings to the question of how best to neutralize any possible effect from this mistaken theory—especially as the litigation that would test the theory would be likely to happen in the compressed period between Election Day and the electoral vote count on Jan. 6. American democracy cannot afford to wait until the last minute to build a defense against this surprisingly well-adhered-to, if incorrect, theory of legislature power. Instead, Congress should be crafting an ECA reform to avoid the consequences of such a theory, even if it were adopted by a majority of the court.
And there is plenty that Congress could do. In addition to mapping out its understanding of its own power, and the weakness of the “independent state legislature theory,” hearings could consider legislation that would block any last-minute judicial interventions designed to displace the ECA, or at least, as Pennsylvania’s law does, to shift any such review to a time before an election. The possibilities are many, and Congress should take its time to consider them. There is no reason that the amendments to the ECA couldn’t occur during the sanest moments of any modern Congress: the lame-duck session between the November midterm election and the seating of a new Congress.
Changes to the ECA are certainly urgent. But the more urgent question for the Senate remains why bare majorities in radically gerrymandered state legislatures should have the power to defeat free and fair elections for Congress, while Congress has no power to defend itself against those distortions unless a supermajority in the Senate agrees.
The modern filibuster has restored the supermajority rules of our first and failed constitution, the Articles of Confederation. Like those articles, it is defended by people who believe that supermajority requirements induce compromise. But the failure of the first American republic led our Framers to reject that mistaken theory. And it is high time for the Senate to answer one obvious question: Why do a group of senators representing a relatively minuscule number of Americans, through Senate rules, get to undo the one clearly good idea of our Framers—that legislatures be governed by legislative majorities?