Two cheers for democracy in America

In an unusual showing of bipartisanship, Congress took decisive action toward the end of last year to update the archaic Electoral Count Act (ECA). This was especially important since Donald Trump and his loyalists had argued that Vice President Mike Pence, as president of the Senate, had the power to interfere with the counting of the certified electoral votes. Clarifying and strengthening the ECA, enacted in 1887, was job one. It was clear that most members understood that the “Make America Great Again” theory contradicted both the intentions of the Constitution’s Framers and a commonsense reading of the law’s text, to say nothing of unbroken historical precedent.

The updated version of the ECA — the Electoral Count Reform Act of 2022 (ECRA) — erases purported ambiguities that the defeated ex-president and his MAGA mob sought to exploit to overturn the 2020 election. Thus, the signature feature of the ECRA is its clarification that the vice president’s role presiding over the certification of a presidential election is purely ceremonial. Relatedly, the ECRA raises the threshold for members of Congress to initiate objections to electoral results to one-fifth of each chamber. Previously, just one House member and one senator could do so.

The ECRA includes other provisions that will help ensure that electoral votes tallied by Congress accurately reflect each state’s public vote for president, and that there can be just one conclusive slate of electors from each state. The law also provides for expedited judicial review of disputes about electors and their certification. Moreover, during the counting process, Congress must treat the electors certified by a state, and modified by any state or federal court relief, as conclusive.

The ECRA also deals with the role of the states, specifying that the choice of electors must occur in accordance with the laws of the state enacted prior to Election Day, and that it is each state’s governor — unless someone else is identified in the laws or constitution of a state — who is responsible for submitting the certificate of ascertainment identifying the state’s electors. Nor can a state’s legislature declare a failed election unless a force majeure has interrupted balloting. This blocks the type of phony allegations of fraud that Trump and his advisers attempted to peddle to Republican-dominated state legislatures to get them to declare that an election had “failed,” and then to select an otherwise losing candidate.

The ECRA is a landmark enactment that represents a rare, though critical and meaningful, bipartisan understanding of how fragile our democracy is and what it takes to prevent its destruction.

Misapplication of the law concerning the determination and count of presidential electoral votes is not the only threat to democratic rule that the defeated ex-president and his legal advisers sought to exploit. Indeed, advancing a doctrine known as the “independent state legislature theory,” ironically styling themselves as conservatives, Trumpian legislators and their lawyers blatantly ignore conservative legal interpretive principles and the history that they otherwise extol, in arguing that the powers of state legislatures are so extensive and exclusive that only they have the right to set the legal requirements for drawing congressional district lines and determining how, when, where and by whom, ballots can be cast.

This theory currently is being advanced before the U.S. Supreme Court in a recently-argued case, Moore v. Harper, by North Carolina legislators who assert that the gerrymandered districts they have created are not subject to judicial review by the state’s supreme court. The justices heard the legislators’ argument in December that the ruling of the North Carolina Supreme Court striking down a gerrymandered congressional map must be overturned because, notwithstanding the state’s constitution and the court’s power of judicial review, it is the legislature that is supreme.

This theory of legislative exclusivity not only is radical on its face but also contradicts the basic notions upon which our federal form of government was established. The idea that fundamental voting rights could be set without being subject to state constitutional limits enforced by state courts is antithetical to the U.S. Constitution’s original and common meaning and the Framers’ clear intentions and experience.

The Framers thoroughly understood that constitutions are a basic check on legislative excess and that legislatures must be bound to the limitations of the enumerated powers assigned to them by the people. That check can be exercised only by an independent judiciary. Moreover, the request that the federal judiciary apply independent state legislature theory is illogical and anti-historical, and it contradicts basic notions of federalism. There can be little question that the Framers did not intend that federal courts contravene the ways that state citizens organize state governments and the state constitutional limitations that obtain to keep their legislatures in bounds.

The justices appeared to understand that any decision adopting the theory, as proposed, would result in catastrophic legislative manipulation of state election law. At most, as Justice Brett Kavanaugh suggested, federal courts might defer to state courts unless the state court “significantly departed from state law,” and only then could there be a federal constitutional Election Clause violation.

One hopes that congressional passage of the bipartisan ECRA, and what appears to be the Supreme Court’s likely rejection of the independent state legislature theory, harbor a return to the stability and adherence to the rule of law that most Americans crave. The events of Jan. 6, 2021, punctuated by Benjamin Franklin’s admonition that the survival of our republic is no sure thing, show that we must be constantly attentive to the rule of law. That is especially true when elected officials arbitrarily act to limit the people’s voting rights and instead seek to impose anti-democratic authoritarian government.

At least some recent legislative and judicial actions offer cause for hope.

Stuart Gerson, former acting attorney general of the United States, is a member of Epstein Becker Green law firm and on the board of trustees of the Campaign Legal Center. Follow him on Twitter @stuartmgerson.