On Wednesday, the Senate Rules Committee took a crucial step in acting to fix an almost 150-year-old statute that governs presidential elections to try to prevent a replay of the sort of attack on democracy we saw on Jan. 6, 2021. At the same time, there is still at least one major flaw in the bill—and it is imperative that it be revised to ensure that the democratic election of the president not be undermined in 2024.
During the Jan. 6 attack on the Capitol, the flaws in the Electoral Count Act of 1887 were exposed as Donald Trump sought to exploit them to overturn the free and fair election. The ECA’s ambiguous and archaic language left the door open to Trump and his lawyers Rudolph Giuliani and John Eastman to attempt in December 2020 to get state legislatures to rescind their certifications of President Joe Biden’s election, to send fake electoral slates to Congress, and to make the unlawful claim that Vice President Mike Pence could reject or delay on Jan. 6 the certification of Biden’s victory.
The Electoral Count Reform Act, introduced in the Senate on July 20, is the result of a monthslong negotiation among 16 senators from both sides of the aisle, admirably led by Republican Susan Collins of Maine and Democrat Joe Manchin of West Virginia.
On Wednesday, the Senate Rules Committee, chaired by Sen. Amy Klobuchar of Minnesota, heard testimony about the Electoral Count Reform Act. The hearing was a model of bipartisan agreement. There was consensus that repairs to the ECA must be achieved now, before this Congress ends, so that new, agreed-upon election rules are in place for 2024.
Indeed, if anything, the bipartisan agreement and sense of urgency carried with them a rush to consensus that papered over a major hole left by the bill as drafted.
Sen. Angus King of Maine asked a question putting his finger on it, but the responses were unsatisfactory. King inquired about a fringe legal theory that the Supreme Court will be considering in a case to be argued this fall. King expressed concern about the“independent state legislature theory” that the reactionary court majority may adopt. He asked whether it might undercut what the ECRA seeks to achieve.
Under an extreme version of this theory, state legislatures can purportedly decide whatever they want in presidential elections, without court review or concern for the majority vote, even after the ballots have been cast. (The court is considering a version of this theory that pertains to whether or not state legislatures have absolute say over redistricting without state judicial review.)
On Wednesday, senators and witnesses alike seemed to accept that the ECRA’s provision assuring that states would be bound to follow their pre-election laws for certifying elections would also protect the will of the majority expressed by the vote in each state. But that overlooked an obvious trick that a state legislature might adopt, especially if empowered under the new Supreme Court doctrine referred to by King. Election-denying legislators might change the state’s election result after voting is completed by inserting in the law, as the Washington Post’s Jennifer Rubin described it, “a ‘trigger’ that it [could] activate at will to change the votes.”
That’s not just hypothetical. Trumpist legislative majorities in the battleground states from which Republicans sent fake electoral certificates last time can and likely will try to enact laws ensuring their success next time. They have already adopted laws to make it harder to vote on the front end of the process, via their election suppression statutes that target minority voters.
And state lawmakers have already shown their readiness to adopt “election subversion” measures granting legislatures or their designees the ability to tilt the election playing field to help ensure their party nominees’ wins.* For instance, in Georgia, which Biden won by a little more than 10,000 votes, the Republican legislature passed a law that would allow it to have election boards in Democratic-leaning counties replaced by more pliant officials who might be friendlier to false claims of voter fraud. These legislatures can enact additional laws before 2024 that provide for “election denying” officials to declare ballot fraud and invalidate election results from precincts carried by the opposite party.
There is a way for Congress to address this difficult problem. The Constitution’s Article II gives Congress the authority to enact laws to “determine the Time of chusing the Electors, and the day on which they shall give their votes.” As recognized more than 200 years ago, Congress, through the Constitution’s “Necessary and Proper” clause, has broad authority to adopt any means, not prohibited by the Constitution, to carry out this power. In 1877, Congress used this authority to adopt the Electoral Count Act.
No court in the 150 years since has questioned Congress’ power to use its authority in this way. It’s the source of Congress’ power to enact the ECA and now, the ECRA. And it would enable Congress to state explicitly that no device enacted by any state legislature may override the way the state’s people have decided to designate the candidate of their choice. For good measure, Congress could state that the Constitution’s provision guaranteeing a “republican form of government” would be violated by conducting an election and then disregarding votes cast in that election based on alleged fraud in the absence of proof established in a court of law.
The ECRA is a major and necessary step forward. The perfect cannot be allowed to be the enemy of the good. But given the reality of the election-denying officials and battleground state legislature majorities, Congress should not allow the good that the current reform measure achieves to potentially be swallowed by state representatives who would enact undemocratic power grabs that all of us, including our federal legislators, might wish we didn’t have to see.
Correction, Aug. 4, 2022: This post originally misstated that many states have passed “back end” measures giving their legislatures the power to determine winners without regard to voters’ choice. Many state legislatures have shown a willingness to adopt such measures. The piece has also been updated to clarify the ECRA’s provision on state legislatures.