A version of this story appeared in CNN’s What Matters newsletter. To get it in your inbox, sign up for free here.
Ghosts of the 2020 election continue to haunt the US system of government.
Exorcism. The House and Senate have a path in mind to exorcise the January 6, 2021, insurrection with a law to clarify among other things that, no, the vice president cannot simply ignore certified election results and, no, states cannot send competing slates of electors to Washington.
Embrace. The Supreme Court, meanwhile, could be headed in the direction of conjuring anti-democratic nightmares if its conservative majority chooses to bless part of the oddball legal theory behind that very same push to overturn the 2020 election.
Disembodied legislatures. Some Republican lawmakers and the lawyer who conjured then-President Donald Trump’s effort to stay in power despite the 2020 election results argue that the Constitution actually suggests state legislatures are independent and disembodied from the rest of their governments to rule over federal elections in their states without state court review.
That the conservative Supreme Court justices who pride themselves on their fidelity to the Constitution’s text want to hear more about re-textualizing this single word, “legislatures,” after more than 200 years, makes the Constitution feel creaky and stuccoed over rather than like the solid bedrock of Western liberal democracy.
Electoral Count Act reform has bipartisan momentum
On Capitol Hill, bipartisan proposals in both the House and Senate would upgrade the Electoral Count Act, a confusing and poorly worded law from horse-and-buggy times – when there were actual disputed elections – that dictates how Electoral College votes are gathered and counted.
The House passed its version this week. The Senate version, which has 10 Republicans on board to defeat a filibuster, will likely see a vote later this year. The two sides could reconcile their differences after Election Day.
Politifact stacks the competing House and Senate bills against each other and finds a lot of similarity. The big differences lie in the threshold for how many lawmakers on Capitol Hill it takes to object to a state’s electors and what might constitute a “failed election,” calling a state’s election results into question. The House bill also gives states more time to settle election lawsuits and disputes.
CNN’s report has more details:
The House bill would require the support of one-third of each chamber to raise an objection and a majority of votes for that objection to be sustained. It outlines five specific and narrow reasons for raising objections. The Senate version of the bill only requires one-fifth of support in each chamber (to raise an objection) and does not restrict reasons for objections.
Currently, only one member from each chamber is required to object and there are no restrictions on the types of objections that can be brought up. That’s why 147 Republicans across both chambers were able to object when Congress met to certify the election on January 6, 2021, and cited various reasons for doing so.
Pressure is building to act before the midterms
The time is now for supporters to clarify these things, since none of the House Republicans who supported their bill will be in office come January.
All nine of the Republicans who supported the House plan were either defeated in GOP primaries or are not running for reelection.
Meanwhile, a large portion of the Republicans who will be on the ballot in November (at least 11 candidates for secretary of state positions and 22 candidates for governor) have spread, endorsed or shown sympathy to 2020 election denialism.
Potentially redefining the Constitution
While the House and Senate are looking at cleaning up the procedure, the Supreme Court will hear a case this term that could redefine the Constitution entirely, perhaps with unintended consequences.
Born from Trump’s failed effort to overturn the 2020 election, the so-called independent state legislature theory says that, despite the history and legal precedent, the Constitution says state legislatures shall pick the time, place and manner of elections for House and Senate and that Congress can alter them.
The case at hand, Moore v. Harper, has to do with North Carolina’s new congressional map, which was gerrymandered by the state’s GOP legislature and then redrawn by the state’s courts – which made the map more favorable to Democrats. Since the Constitution doesn’t specifically say state courts can oversee state legislatures on the matter, supporters of the idea want legislatures to have new power over congressional maps.
If the Supreme Court gives them new power, the thinking goes that state legislatures, often under one-party control, would be unchecked by the normal equilibrium and could act in unexpected ways to influence elections.
Read an in-depth report on the independent state legislature theory from CNN’s Ariane de Vogue.
What to make of the Supreme Court hearing this case
I talked to Eliza Sweren-Becker of the Brennan Center for Justice, who is a fierce critic of the independent state legislature theory and testified before Congress about the theory earlier this year. She cautioned we should not assume the Supreme Court will endorse it simply because four justices agreed to hear the case and several have expressed an openness to the theory.
“There is a mountain of material, of scholarship, thinking and analysis, particularly of the founding era, reflecting that the independent state legislature theory is simply an incorrect reading of the Constitution,” Sweren-Becker said.
The Supreme Court is considering the independent state legislature theory in the context of congressional maps. And there it could come back to bite Republicans.
Princeton University professor Sam Wang, who tracks the gerrymandering of congressional districts by political parties, argues Republicans might not exactly run the table in a scenario where legislatures were given new power to rewrite congressional maps. In fact, in several scenarios, he found no real change in the balance of power on Capitol Hill or the possibility of a Democratic gain of up to nine seats.
Over the past decade, Wang argues in his newsletter, “Republicans have taken a more aggressive approach to redistricting, and in many places they have already maxed out their gains.”
Wang said nobody should root for independent state legislatures, which he describes as a “Wild West scenario.”
Sweren-Becker said that by cutting state governors and courts largely out of election law, the theory could nullify existing state protections for voters, create chaos for the state officials who administer elections and, importantly, open the door to “undemocratic shenanigans.”
“We’ve seen over the past year more states introducing, and in some instances passing, legislation that would create the risk of election sabotage and election interference,” she said.
That would be the nightmare scenario: The House and Senate limit their own ability to question election results put forward by states, and the Supreme Court gives state legislatures new power to engage in election shenanigans.
CORRECTION: A previous version of this story included an incorrect description of the group of Republican senators who support a bipartisan reform bill.