A Breakthrough On Reforming The Electoral Count Act – But More Needs To Be Done

CNN reports, In response to Trump, senators agree to clarify vice president’s role in electoral certification:

Senators from both parties have reached an agreement to clarify that the vice president only has a ceremonial role in overseeing the certification of the electoral results, according to two Senate sources, the first legislative response to former President Donald Trump’s pressure campaign to overturn the 2020 presidential election results.

The agreement will be part of a larger deal to overhaul the Electoral Count Act, which a bipartisan group of senators plans to unveil as soon as next week. The effort was spawned by Trump’s effort to get Congress and then-Vice President Mike Pence to disregard now-President Joe Biden’s electoral win and install him into a second term, with senators looking to make it harder to do that future.

While constitutional experts and others say the vice president currently can’t disregard a state certified electoral result, Trump continually berated Pence over the issue and told him to simply send the matter back to the states. Pence resisted the effort – despite being a target of Trump and his mob of supporters who stormed the Capitol on January 6, 2021.

The pressure campaign against the vice president has been a key part of the House select committee’s investigation into the Capitol Hill insurrection.

That larger deal is close to being finalized, with senators meeting Wednesday night saying that they are still ironing out some of the language.

“We’re hopeful,” said Sen. Joe Manchin, a Democrat of West Virginia, on Wednesday about the timetable for announcing a deal.

“We are very close. We have a few technical issues to iron out. And I’m very hopeful we’ll have a bill early next week,” said Sen. Susan Collins, a Maine Republican, on Wednesday who added that because of jurisdictional issues, the group may propose a series of bills to address the needed reforms, but they have not made a decision on that yet.

“The Rules Committee clearly has jurisdiction over the Electoral Count Act, Homeland Security clearly has jurisdiction over the Postal Service and over presidential transitions, which we are also trying to smooth out when there’s a case when it isn’t clear who’s won,” she said, explaining why the bill might need to be split up.

The senators said they expected their proposal to be referred to committees of jurisdiction where they would be assessed further before votes on the floor.

“The group has done good work,” Democratic Sen. Mark Warner of Virginia said.

https://twitter.com/marceelias/status/1547386504833548291?cxt=HHwWhoCy7fz0tfkqAAAA

Congress must do more. Congress can preempt the activist radical Republican Supreme Court from recognizing Coup Plotter lawyer John Eastman’s bogus “Independent State Legislature” doctrine in the case of Moore v. Harper next term.

Nicholas Stephanopoulos explains, How Congress Can Preempt the Most Dangerous Possible Ruling of the Next Supreme Court Term:

The U.S. Supreme Court has agreed to hear a case in which North Carolina legislative leaders argue that state legislatures should be free to regulate congressional elections without any constraints from other state actors. If adopted, this position would revive the Republican gerrymander of North Carolina’s congressional districts, which a state court struck down on state constitutional grounds.

In other cases, this position would mean that state legislatures could subvert congressional elections without pushback from governors, state courts, or even state electorates.

Fortunately, Congress doesn’t have to sit back and wait for the court’s next potential blow against democracy. Under the same constitutional provision invoked by North Carolina’s politicians, Congress can indisputably nullify their claim of absolute electoral power—and all others like it. That provision is the elections clause of Article I. North Carolina’s politicians fixate on the first half of the clause, which says that “the Legislature” of each state shall regulate the “Times, Places and Manner” of congressional elections. But the clause’s second half authorizes Congress to override any state policies about congressional elections with which it disagrees. “Congress may at any time … make or alter such Regulations.”

To nip the North Carolina case in the bud, then, all Congress has to do is pass a short statute ratifying all state regulations of congressional elections that are compliant with state constitutions. State constitutions commonly give regulatory roles to many nonlegislative actors: governors who can veto bills, state courts who can review laws’ constitutionality, bureaucrats who can set certain policies, even voters who can launch initiatives. Under the proposed statute, all these actors’ efforts would be immunized against North Carolina–style challenges. That’s because gubernatorial vetoes, state court decisions, state agency rules, and voter initiatives would all now have the imprimatur of federal law. So if a state legislature objected to any of these actions, the resulting clash would no longer be between that body and another state actor—a battle at least four Supreme Court justices likely think the legislature should win. Instead, the dispute would be between the legislature and federal law, which would plainly trump that body’s preferences.

If Congress wanted to pack more of a punch, it could also try to ratify all state regulations of presidential elections. In that case, the statute would aim to neutralize state legislative complaints about state courts or state agencies making decisions about presidential races. It would also hope to foil state legislative schemes to appoint presidential electors unilaterally, in violation of state law. In other words, the statute would seek to pull the rug from under many of the strategies that Donald Trump deployed after losing the 2020 election. The odds of another coup attempt disguised by a patina of legal argument would thus decline sharply.

To pass the statute, Democrats would have to either amend the filibuster—an unlikely scenario at this point—or win the support of several Senate Republicans. This second avenue is more plausible than it sounds. Some Republican senators might be interested for the same reason they’re likely to agree to revisions of the Electoral Count Act: avoiding a rerun of the tragic events that followed the 2020 election. The Electoral Count Act’s ambiguities contributed to the election’s grim aftermath by seeming to allow the vice president to reject properly certified slates of electors. Just as responsible for these developments was the idea that state legislatures can do whatever they want with respect to presidential elections. The statute would squelch that idea once and for all. (To ease passage, it could even be incorporated into the Electoral Count Act amendments.)

Raw partisanship might be another impetus for Senate Republicans to act. If accepted, North Carolina’s claim would open the door to brutal Democratic gerrymanders in California, Colorado, Maryland, New York, and Washington. In all these states, Democratic legislators are currently blocked from crafting advantageous maps by independent commissions or state constitutional provisions. Combined, these states’ congressional seats far outnumber the seats of states where Republican legislators are the ones barred from gerrymandering by state law. So at least in terms of redistricting, it’s Democrats who would be the big winners of a ruling that state legislatures can draw the lines however they like. That the North Carolina case happens to be brought by Republicans doesn’t change that fact.

The Senate is one audience; the right-wing Supreme Court is another. Would the court allow Congress to countermand state legislative choices about federal elections? In a 2013 decision authored by conservative patron saint Justice Antonin Scalia, the court did just that. The Arizona Legislature tried to require people to show proof of citizenship when they registered to vote. The court held that this requirement was preempted by the National Voter Registration Act, which permits people to register after completing a form that doesn’t ask for citizenship documentation. Congress, the court explained, can “preempt state legislative choices” as it sees fit. Congress’ power over federal elections is “paramount” and so “supersede[s]” any “inconsistent” state legislative policies.

Note: The GQP-controlled Arizona legislaturę passed a new version of this law this past session, hoping to get a second-bite at the apple before the new activist radical Republican Supreme Court, a court which has no respect for judicial precedent or stare decisis, or that a Republican Justice (including their sainted Antonin Scalia) wrote the opinion.

If anything, a statute ratifying all state regulations of federal elections would present an easier case. The National Voter Registration Act significantly changed the legal status quo. In the court’s words, it “erected a complex superstructure of federal regulation atop state voter-registration systems.” In contrast, the suggested statute would perfectly preserve the existing legal order. However state constitutions distribute authority among legislatures, governors, courts, agencies, and voters would be respected—in fact, codified—by Congress. The statute’s only impact would be to stop legislatures like North Carolina’s from asserting that their wishes must prevail over those of all other state actors.

To be sure, extending the statute to presidential elections is legally murky. On the one hand, the Supreme Court long ago rejected the view that “Congress has less power over the conduct of presidential elections than it has over congressional elections.” On the other, the language of Article II does support a distinction between these contexts. Unlike the elections clause of Article I, the electors clause of Article II only enables Congress to “determine the Time” of presidential elections. It wouldn’t be hard for a textually minded court to conclude that, while Congress has near-plenary authority over congressional elections, its ability to regulate presidential elections is more limited.

But this possibility hardly dooms this project. For one thing, the court might choose to respect its precedent about the symmetry of Congress’ powers over congressional and presidential elections [Seriously Dude?] More importantly, it’s the North Carolina case that’s the imminent threat to American democracy, and that suit involves only congressional elections. Even if Congress can’t respond to every other danger, it can at least defuse this bomb.

There is a much simpler solution which a Democratic Congress could enact right now if it would ignore the archaic Senate filibuster rule. Congress has the power of jurisdiction stripping over Article III courts, including the U.S. Supreme Court.

The bipartisan Presidential Commission on the Supreme Court of the United States took written testimony from an expert, Christopher Jon Sprigman. JURISDICTION STRIPPING AS A TOOL FOR DEMOCRATIC REFORM OF THE SUPREME COURT (excerpt):

More broadly, the “rule of law” is of little value if law does not rest on a foundation of democracy. But judges are not democratically accountable and the Constitution that they interpret is, at best, very imperfectly democratic. No one alive now ever voted for it. And given Article V’s very demanding amendment rules, we are, barring some enormous change in America’s partisan polarization, stuck—unless we can find a way for the elected branches to push back.

In the remainder of this testimony, I will describe how Congress could use jurisdiction stripping to restrain politicized courts. I will show that jurisdiction stripping is constitutional, even if Congress employs it to override existing judicial interpretations of the Constitution’s meaning. I will also show that jurisdiction stripping is desirable; that we should welcome it as a strategy to defend democratic self-governance against courts attempting to enforce their political preferences as law. And finally, I will show that a legislative power to qualify judicial supremacy is not unknown to liberal democracies. A legislative override is in fact an explicit feature of the constitutional order in Canada. I will describe that arrangement, the so-called “Notwithstanding Clause” of the Canadian Charter of Rights and Freedoms, and show how Congress’s power over courts’ jurisdiction can be understood as a sort of functional analogue to that arrangement.

In sum, Congress has, and has always had, the power to exert a democratic check on judicial review. The real question is whether Congress will use that power.

So Americans are not helpless in the face of a rogue Supreme Court. See, Jamelle Bouie, How to Discipline a Rogue Supreme Court (subscriber content).

Congress has the power to prevent this activist radical Republican Supreme Court from giving its legal impramatur to an unconstitutional scheme to nullify the popular vote, and to impose an authoritarian Republican tyranny of the minority in perpetuity.

The only thing standing in the way of preserving American democracy is the archaic Senate filibuster rule. God help any Democratic senator who would put the archaic Senate filibuster above preserving American democracy and the popular vote.

Get this done. Do it NOW.