Congress can thwart conservative court’s looming election threat

In 1900, after Republican President William McKinley successfully prosecuted the Spanish American War, he was re-elected president over anti-imperialist Democrat William Jennings Bryan. Soon after, in a series of decisions called the “Insular Cases,” the Supreme Court lined up behind McKinley’s victory by fixing into law American rule over islands such as Puerto Rico that Spain had ceded.

Chicago journalist Finley Peter Dunne had the Insular Cases in mind when he famously wrote, “The Supreme Court follows the election returns.” That cynical quip expressed what is visible today: The reactionary court majority wear their politics on their sleeves.

On Dec. 7, when Moore v. Harper is argued, we’ll have our first glimpse into whether the court intends something more than just “following” election returns.

The Moore case puts at grave risk the central tenet of our democracy: that the people choose their leaders by majority vote. That tenet will be in jeopardy if the radical court majority uses Moore to make the thoroughly debunked “independent state legislature theory” the law of the land.

The untenable premise at the heart of the independent state legislature theory is that the constitution’s Election Clause gives state legislatures sole authority to set the terms and conditions for federal elections, at least absent a congressional override. As conservative icon and former federal appellate court judge Michael Luttig has written, the independent state legislature theory that the Republican petitioners advance in Moore was “the legal centerpiece of former President Donald Trump’s efforts to overturn the 2020 election.”

While Moore involves gerrymandering, one can easily foresee how — if the court majority endorses the theory of independent state legislatures — election deniers will move to extend it to presidential elections. Step One: State legislatures’ exclusive control over redistricting is established. Step Two: The holding extends, denialists will say, to legislatures selecting presidential electoral college slates … regardless of the popular vote.

Not so fast! The lame duck Senate has an historic opportunity for preserving democracy: adopt Sen. Susan Collins’s (R-Maine) bill to reform the outdated 1887 Electoral Count Act (ECA). The House has already adopted its version. A merged bill can thwart the prospect of Moore v. Harper installing state legislative rule over majority rule as early as the 2024 presidential election.

The ECA Reform bills nail down something not explicit in current law: that it’s the state’s governor — and only the state’s governor — who certifies the winning electoral slate. The 1887 ECA more vaguely says that each state’s “executive” has that authority. That leaves an ambiguity that an election-denying legislature could use to circumvent a governor faithful to the majority’s vote — legislators could specify whomever they wished as the state’s “executive” for purposes of certifying presidential elections.

Farfetched? In the lead-up to Jan. 6, Trump nearly drove an armored limousine through ECA loopholes trying to overturn the 2020 election. He has not stopped trying. Without reform of the ECA, a Mooredecision that endorses the independent state legislature theory would open the door to election-denialist state legislatures manipulating the law to get a Republican president elected even if voters gave Democrats the victory.

Good news! For 2024 — so long as ECA reform is enacted — midterm voters in battleground states blocked that path: The only three swing states with in-coming Republican-controlled legislatures — Arizona, Georgia and Wisconsin — reelected non-election-deniers as their governors: Brian Kemp (R-Ga.), Katie Hobbs (D-Ariz.), and Tony Evers (D-Wis.). Meanwhile, in battleground Michigan and Pennsylvania, voters made Democrats Gretchen Whitmer and Josh Shapiro their governors through 2027. Nevada elected Republican Joe Lombardo, another non-election denier.

Beyond specifying governors’ role certifying elections, the ECA reform bills contain other significant upgrades. They clarify that a vice-president’s role presiding over Congress’s certification of an election is ceremonial. The House measure smartly adds that the vice president cannot “delay” the electoral count, as Trump unsuccessfully pressured Mike Pence to do in 2020. A final bill should incorporate the ban on “delay.” 

To ward off future mischief, it would be prudent to add a “majority rule” provision. It might say, for example: “A state’s federal election processes must provide that the certified presidential elector slate be the one chosen by the majority of votes cast.” There are additional possible improvements.

That said, let’s not make the “perfect” the enemy of the “good.” Sensible changes should be fought for, after which Congress must enact the best bill available. Passage is in plain sight; Senate Minority Leader Mitch McConnell (R-Ky.) is among 15 Republican co-sponsors, more than enough to overcome a filibuster.

Without ECA reform, majority rule is at the mercy of Supreme Court justices who have shown little passion for democracy and whose overreach in Dobbs has already offended key swing voters. If the Moore majority adopts the independent state legislature theory, without Electoral Count Act reform, Finley Peter Dunne’s 1901 gibe at the justices may need an update: “The court doesn’t merely follow election results, it drives them.” 

Dennis Aftergut is a former federal prosecutor who has argued successfully in the Supreme Court.

NOTE: This post has been updated from the original to correct the date on which Moore v. Harper will be argued before the court.