While I’m glad that Congress is looking at reforming the Electoral Count Act, the new version as written has one fatal flaw: it fails to address the “independent state legislature” theory. In a recent Slate piece Lawrence Tribe, Dennis Aftergut and Erwin Cherminsky explain that Article II gives Congress the authority to enact laws to “determine the Time of chusing the Electors, and the day on which they shall give their votes.”
Combining that authority with the “Necessary and Proper” clause, they add:
“Congress [could] state explicitly that no device enacted by any state legislature may override the way the state’s people have decided to designate the candidate of their choice. For good measure, Congress could state that the Constitution’s provision guaranteeing a “republican form of government” would be violated by conducting an election and then disregarding votes cast in that election based on alleged fraud in the absence of proof established in a court of law.”
Not only could Congress do this, it should. Without this change, the Electoral Count Act of 2022 is cannot protect us from extremists’ attempts to undermine our democracy. Thanks.
First sent on August 8, 2022 by Jess Craven
