Robert Reich: Electoral College reform is 'urgent' as the Supreme Court considers 'bonkers' election theory

15 December 2022

Democrats, during the late 2022 lame duck session, still have narrow majorities in both houses of Congress. But come January 3, 2023, they won’t. A new Republican majority, albeit a small one, will be seated in the U.S. House of Representatives. And Democrats will have a slightly larger effective majority in the U.S. Senate, where 48 Democrats will be joined by three independent senators who caucus with them: Vermont’s Bernie Sanders, Maine’s Angus King and Kyrsten Sinema, who has left the Democratic Party but doesn’t plan to caucus with Republicans.

One of the bills being considered during the lame duck session is the Electoral Count Reform Act of 2022 (ECRA), which has bipartisan support (for example, Sen. Susan Collins, a Maine Republican and moderate conservative, is on board). The bill is designed to strengthen the Electoral Count Act of 1887.

In an op-ed published by Newsweek on December 13, liberal economist Robert Reich stresses that it is urgent for Democrats to get the ECRA passed by Congress and signed into law by President Joe Biden — especially with the U.S. Supreme Court considering “bonkers” far-right arguments in the case Moore v. Harper.

In Moore v. Harper, North Carolina Republicans are not only defending partisan gerrymandering in that state — they are also promoting a fringe legal idea known as the independent state legislature theory (ISL). In its most extreme form, the ISL argues that in individual states, only state legislatures should have a right to govern elections — not governors, not judges, not state supreme courts. That version of the ISL totally excludes a state’s executive and judicial branches, leaving only the state’s legislative branch in charge.

“Moore vs. Harper, argued last week before the Supreme Court, makes the Electoral Reform Act urgent,” Reich warns. “It must be enacted within days, before the end of this Congress. Republicans won't touch it once they control the House.”

Reich, who served as secretary of labor under the Clinton Administration during the 1990s and now teaches at the University of California, Berkeley, continues, “J. Michael Luttig, a former federal appeals court judge and long a hero to conservatives, persuasively argues that without changes in federal law, Moore v. Harper would allow a legislature to substitute its own slate of presidential electors for the ones voters had chosen on Election Day. This is precisely what former President Donald J. Trump sought to do after his 2020 election loss.”

Moore v. Harper isn’t the first time that Republicans have made a legal argument in defense of partisan gerrymandering, but unlike previous efforts, it uses the ISL as part of its argument.

“North Carolina bases its argument on the bonkers ‘independent state legislature’ theory, which interprets Article I Section 4 of the U.S. Constitution — authorizing state legislatures to prescribe ‘the times, places and manner of holding elections’ — to give state legislatures sole authority over elections, without interference from state courts,” Reich observes. “Brett Kavanaugh, Samuel Alito, Clarence Thomas and Neil Gorsuch have all endorsed aspects of this theory. Here's where the Electoral Reform Act comes in.”

Reich goes on to explain why the Electoral Count Reform Act of 2022 would strengthen the Electoral Count Act of 1887.

“Article II of the Constitution requires states to appoint presidential electors ‘in such manner as the Legislature thereof may direct,’” Reich notes. “And the Electoral Count Act…. allows state legislatures to choose a new manner of appointing the state's electors if the vote for the presidency has ‘failed’ in the state. But what does ‘failed’ mean, and who has the authority to declare a failure? This wasn't an issue until the 2020 election, when Donald Trump exploited the Act's vagueness to claim he could overturn the will of the voters.”

Reich adds, “He pushed state legislatures to appoint electors for him regardless of the popular vote. Fortunately, they refused. He also pressured congressional Republicans to object to Joe Biden's electors. Trump partly succeeded, but not by enough to throw the election his way…. American democracy survived by a whisker because everyone chose to play by the rules. But add in a Supreme Court ruling affirming the independent state legislature theory, and what do you get? If Trump or any other anti-democracy candidate tries the same strategy again, you get a democratic disaster.”

The liberal economist warns that in a “future presidential election,” a “GOP-controlled state legislature, armed with a broad ‘independent state legislature’ theory from Moore v. Harper,” could “appoint a slate of fake electors.”

“This time, democracy wouldn’t survive, which is why the Electoral Reform Act, now before Congress, is so important,” Reich argues. “It would require state legislatures to appoint presidential electors exactly as they've been appointed before. So, if a state's laws require that electors certify the person who has won the popular vote, a legislature can't use the ‘failed’ election loophole to appoint electors for anyone else…. Democracy survived in 2020, but how many close calls like this can our system of self-government endure?”

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