After Republican President William McKinley won the Spanish-American War in 1900, he was re-elected over Democrat William Jennings Bryan, who was against imperialism. Soon after, in a series of decisions called the “Insular Cases,” the Supreme Court backed McKinley’s win by making it legal for the United States to rule over islands that Spain had given up, like Puerto Rico.
Finley Peter Dunne, a journalist from Chicago, famously said, “The Supreme Court follows the election returns.” He was thinking of the Insular Cases when he said this. This cynical joke showed what can be seen now: the conservative majority of the court wears their politics on their sleeves. When Moore v. Harper is argued on Dec. 7, we’ll know for the first time if the court wants to do more than just “follow” election results.
The most important part of our democracy is that the people choose their leaders by a majority vote. This is in danger because of the Moore case. This principle will be in danger if the radical court majority uses Moore to make the “independent state legislature theory,” which has been proven wrong many times over, the law of the land.
The flawed idea at the heart of the independent state legislature theory is that the Election Clause of the Constitution gives state legislatures the sole power to set the rules for federal elections unless Congress overrides them. Michael Luttig, a famously conservative and former federal appeals court judge, has written that the independent state legislature theory that the Republican petitioners used in Moore were “the legal center of former President Donald Trump’s efforts to overturn the 2020 election.”
Moore is about gerrymandering, but it’s easy to see how, if the majority of the court agrees with the idea that state legislatures should be independent, election deniers will try to apply it to presidential elections. Step 1: It is decided that redistricting will only be done by the state legislatures. Step Two: Deniers will say that the holding goes as far as legislatures choosing presidential electoral college slates, no matter what the popular vote was.
Not so quickly! The outgoing Senate has a once-in-a-lifetime chance to save democracy: they can pass Sen. Susan Collins’s (R-Maine) bill to update the old 1887 Electoral Count Act (ECA). The House’s version has already been approved. A combined bill could stop Moore v. Harper from making state legislatures rule over the will of the majority as soon as the 2024 presidential election.
The ECA Reform bills make clear what isn’t clear in current law: the state’s governor is the only person who can certify the winning electoral slate. Less clearly, the 1887 ECA says that each state’s “executive” has this power. That leaves a loophole that a legislature that didn’t want to certify presidential elections could use to get around a governor who voted with the majority. Lawmakers could name whoever they wanted as the state’s “executive” to certify presidential elections.
Farfetched? In the days leading up to January 6, Trump almost tried to overturn the 2020 election by driving an armored limousine through ECA loopholes. He hasn’t given up yet. If the ECA isn’t changed, a Moore decision that backs the independent state legislature theory would let election-denying state legislatures change the law to get a Republican president elected even if the voters chose a Democrat.
Good news! Voters in battleground states stopped that path for 2024, as long as ECA reform is passed: Arizona, Georgia, and Wisconsin are the only swing states whose legislatures will soon be controlled by Republicans. All three of these states re-elected non-election-denying governors: Brian Kemp (R-Ga.), Katie Hobbs (D-Ariz.), and Tony Evers (D-Wis.). In Michigan and Pennsylvania, which were both close races, voters chose Democrats Gretchen Whitmer and Josh Shapiro to be their governors until 2027. Joe Lombardo, a Republican, was elected in Nevada. He is another non-election denier.
Other important changes in the ECA reform bills are not related to the governors’ role in certifying elections. They make it clear that a vice-role president when Congress certifies an election is just a formality. The House bill is smart because it says that the vice president can’t “delay” the count of votes, which Trump tried to get Mike Pence to do in 2020 but failed to do. The ban on “delay” should be part of the final bill.
To stop trouble in the future, it would be smart to add a “majority rule” clause. It could say something like, “A state’s federal election process must make sure that the list of certified presidential electors is the one that gets the most votes.” More things could be made better.
Still, let’s not let “perfect” get in the way of “good.” Fight for changes that make sense, and then Congress should pass the best bill they can. There is no doubt that the bill will pass. Senate Minority Leader Mitch McConnell (R-Ky.) is one of 15 Republican co-sponsors, which is more than enough to stop a filibuster.
Without ECA reform, majority rule is at the mercy of Supreme Court justices who haven’t shown much interest in democracy and whose overreach in the Dobbs case has already upset key swing voters. If the Moore majority goes with the independent state legislature theory and doesn’t change the Electoral Count Act, Finley Peter Dunne’s 1901 insult to the justices, “The court doesn’t just follow election results, it drives them,” may need to be updated. Dennis Aftergut is a former federal prosecutor who has argued successfully in front of the Supreme Court.
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