The Electoral Count Act Reform Bill is Actually Pretty Good. Is it Constitutional?
by Michael C. Dorf
Much of the news coverage of the proposed legislation to reform the Electoral Count Act (ECA) has focused on its provision (Section 15(b)(1)) stating that in the counting of the Electoral College (EC) votes at the January 6 joint session of Congress, the role of the Vice President (technically the President of the Senate) is entirely ministerial. That's a sensible rule but hardly adequate to address the key threat to democracy. Donald Trump's pressure campaign focused on numerous local, state, and federal officials, turning to VP Pence only after it (just barely) failed against those others.
Moreover, it's not entirely clear that Congress has the constitutional power to decide what the VP's role is in counting EC votes. My view--shared by just about every reputable constitutional scholar--is that Article II and the Twelfth Amendment already make the VP's role ceremonial, but if I'm wrong and the likes of John Eastman are right that the Constitution gives the VP the power to make substantive judgments, then it's not clear how Congress could by statute take that power away. Perhaps the answer is that the issue would not be justiciable, but even that doesn't solve the puzzle, because the courts would then need to decide which political actors to defer to: the Congress that enacted the revised ECA or a Vice President who purported to exercise non-ministerial power to reject/select electoral votes, perhaps with the backing of various members of Congress.
Fortunately, at least in the short run, there is no great risk of abuse. VP Harris will not attempt to exercise substantive power over EC votes on January 6, 2025.
Meanwhile, the bill contains a fair number of other important provisions. The most important of these, to my mind, is the repeal of 3 U.S.C. § 2, which currently provides: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." That language leaves open the possibility that a Trump-friendly or otherwise anti-democratic state legislature could decide, based on bogus claims of voter fraud, that the presidential election in the state "failed" in some way and simply appoint its favored electors. The new bill would make clear that any actions would need to be in conformity with state laws "enacted prior to election day," subject to final resolution by litigation in the federal courts.
The proposed bill and a companion addressing threats to election officials, voting by mail, and assorted other issues will not alone rescue American democracy from the existential threat it faces, but, if enacted, they would provide substantial help in the rescue effort. Are the bills constitutional in light of the dreaded independent state legislature (ISL) theory that the Supreme Court might endorse in Moore v. Harper?
The version of ISL at issue in Moore involves Article I, § 4's provision stating: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof." North Carolina Republicans argue that this provision permits the state legislature to adopt laws--including, in this case, congressional districts that result from a highly partisan gerrymander--independent of constraints imposed by the state constitution as construed by the state supreme court.
The version of ISL that would be at issue in a presidential election is found in Article II, § 1. Its adherents argue that in granting to each state the power to choose its electors "in such manner as the Legislature thereof may direct," the Constitution enables state legislatures to decide how to choose electors without interference from state courts or even the participation of the governor. There are somewhat more modest versions of ISL. For example, the Bush v. Gore concurrence applied an incipient ISL to rule that in reviewing a decision governing a presidential election, federal courts do not give state courts the complete deference they receive with respect to state law in other contexts, but the concurrence did not say that state courts have no role to play in resolving disputes regarding presidential elections. In the view of the concurring Justices in Bush v. Gore, the Florida Supreme Court unreasonably construed the text of state election laws, but the logic of the concurrence leaves open the possibility that federal courts would accept a reasonable though contested state court construction of state laws.
No version of ISL is persuasive, as numerous scholars have argued. Dean Vik Amar's columns on Verdict (archived here) have been especially good at cataloguing the multiple ways in which ISL is ahistorical, atextual, and senseless. I very much hope, but I do not expect, that the Supreme Court will reject ISL in Moore.
But even if the Court does accept ISL in Moore, all is not lost. ISL applies only to federal elections. The North Carolina Supreme Court decision under SCOTUS review in Moore invalidated not only the gerrymandered congressional district map but also the gerrymandered maps for the state House and state Senate. ISL has no bearing on those decisions; fairer maps for the state legislature would result in a representative state legislature, which would provide an avenue for redrawing the state's congressional districts--although that would take considerable time.
Even the most aggressive version of ISL cannot give a state legislature unfettered power regarding federal elections where Congress acts. The power given to state legislatures with regard to congressional elections is qualified this way: "but the Congress may at any time by law make or alter such regulations" of state rules governing congressional elections, "except as to the places of choosing Senators." Even as the Supreme Court in Rucho v. Common Cause held that challenges to partisan gerrymandering are nonjusticiable in federal court, it recognized the power of Congress to address the issue. Last year the House of Representatives passed H.R. 1, the For the People Act, including Section 2403(b), which forbids partisan gerrymandering, but the bill has stalled in the Senate--where no Republicans support it and Senators Manchin and Sinema have been unwilling to abolish or suspend the filibuster in order to see it past the finish line.
The Senate's inaction on H.R. 1 is profoundly disappointing. Still, the same power that allows Congress to forbid partisan gerrymandering also allows it to rein in ISL--at least with respect to congressional elections. Insofar as one of the bills now on offer applies to all federal elections, it is clearly an exercise of Congress's Article I, § 4 power to "make or alter" state rules.
What about presidential elections and the proposed legislation's changes to the ECA? Article II, § 1 does not broadly authorize Congress to override state law governing the "manner" of presidential elections, but it does provide that "Congress may determine the time of choosing the electors, and the day on which they shall give their votes." Both the original ECA and the proposed revised version exercise that power. In my view, both the original version and the proposed revision are valid under the traditional deference given Congress to enact laws necessary and proper to carry out its enumerated powers. But even someone who takes a stingier view of congressional power under Article II, § 1 should be willing to uphold the most critical provisions of the proposed bill--the ones that make clear that the power of state legislatures with regard to presidential elections must be exercised through laws "enacted prior to election day." Those provisions govern timing, and they would preclude the worst shenanigans that Trump and his allies in state legislatures attempted following the 2020 election.
Bottom Line: The bills on offer from Senators Collins, Manchin, et al are pretty good, and their key provisions are constitutional even assuming the Supreme Court endorses ISL. I count nine Republican Senators among the sponsors of the ECA reform measure: Capito; Collins; Graham; Murkowski; Portman; Romney; Sasse; Tillis; and Young. That's one shy of the ten that would be needed to overcome a filibuster. I assume that if a tenth were already available, that GOP Senator would already be listed as a sponsor, but I also assume that the announcement of the proposed legislation reflects the view of the sponsors--who are nothing if not timid--that they think they can round up a tenth. That's the closest thing you'll find to optimism on this blog.