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The ghosts of the 2020 election continue to haunt the US governmental system.
Exorcism. The House and Senate have a way in mind to drive out January 6, 2021. Rise with a law that clarifies, among other things, that no, the vice president cannot simply ignore certified election results, and no, states cannot send competing voter lists to Washington.
Hug. The Supreme Court, meanwhile, could be headed towards conjuring up anti-democracy nightmares if its conservative majority decides to bless some of the odd legal theory behind the same push to overturn the 2020 election.
disembodied legislators. Some Republican legislators and the attorney who summoned the then-President Donald Trump’s efforts to remain in power despite the 2020 election results argue that the Constitution does in fact propose that state legislatures be independent and disembodied from the rest of their governments to decide federal elections in their states without review by state courts .
That the conservative Supreme Court justices, who pride themselves on their loyalty to the constitutional text, want to hear more about the retextualization of that one word “legislature” after more than 200 years makes the constitution seem raspy and plastered rather than like the solid foundation of the western ones liberal democracy.
On Capitol Hill, bipartisan proposals in both the House and Senate would improve the Electoral Count Act, a confusing and poorly worded law dating back to horse-drawn carriage days — when there were actually contested elections — that dictates how Electoral College votes are collected and counted.
The House adopted its version this week. The Senate version, which has 10 Republicans on board to defeat a filibuster, will likely see a vote later this year. The two sides could settle their differences after election day.
Politifact stacks the competing bills of the House and Senate against each other and finds many similarities. The big differences lie in the threshold of how many lawmakers it takes on Capitol Hill to object to a state’s voters and what might constitute a “failed election” that puts a state’s election results in question. The House bill also gives states more time to resolve election lawsuits and disputes.
The CNN report provides more details:
The House bill would require the support of one-third of each chamber to object and a majority of votes to uphold that objection. It outlines five specific and narrow grounds for raising objections. The Senate version of the bill requires only one-fifth of the support in each chamber (to object) and does not restrict grounds for objection.
Currently, only one member of each Chamber is required to object and there are no restrictions on the types of objections that can be raised. For this reason, 147 Republicans in both houses were able to object when Congress met to confirm the election on January 6, 2021, citing various reasons.
Read about the law the House passed.
It is now time for proponents to get these things straight, as none of the House Republicans who supported their bill will be in office next January.
All nine Republicans who backed the House plan were either defeated in the GOP primary or will not stand for re-election.
Most Republicans who publicly support the Senate reform bill are retiring, although Sen. Lindsey Graham of South Carolina, a Trump ally, is a co-sponsor.
Meanwhile, a large portion of the Republicans running for election in November (at least 11 candidates for the post of secretary of state and 22 candidates for the governorship) have disseminated, supported or shown sympathy for the rejection of the 2020 election.
The Supreme Court will hear a case this term while the House and Senate try to clear the case that could completely redefine the Constitution, perhaps with unintended consequences.
Born out of Trump’s failed efforts to overturn the 2020 election, the so-called independent state legislature theory holds that despite history and precedent, the Constitution states that state legislatures can determine the time, place, and manner of elections for the House of Representatives and Senate etc. Congress may change them.
The present case, Moore v. Harper has to do with North Carolina’s new congressional map, which was rigged by the state’s GOP legislature and then redrawn by the state’s courts — making the map more favorable to Democrats. Because the Constitution doesn’t specifically state that state courts can monitor state lawmakers on the matter, proponents of the idea want lawmakers to be given new powers over congressional tickets.
If the Supreme Court gives them new powers, the assumption is that state legislatures, often under the control of one party, would be unhindered by the normal balance and could act in unexpected ways to affect the election.
Read an in-depth account of CNN’s Ariane de Vogue’s theory of independent state legislature.
I spoke to Eliza Sweren-Becker of the Brennan Center for Justice, who is a harsh critic of the independent state legislature theory and testified about the theory before Congress earlier this year. She warned us against assuming the highest The court will approve it only because four judges have agreed to hear the case and several have expressed openness to the theory.
“There is a mountain of material, scholarship, thinking and analysis, particularly from the early days, that reflects that the theory of independent state legislature is simply a misreading of the constitution,” Sweren-Becker said.
The Supreme Court is examining the theory of independent state legislatures related to convention tickets. And there it might come back to bite the Republicans.
Princeton University Professor Sam Wang, who tracks political parties’ manipulation of congressional districts, argues that in a scenario where lawmakers are given new powers to rewrite congressional maps, Republicans may not exactly lead the table. In fact, in several scenarios he found no real shift in the balance of power on Capitol Hill, or the possibility of such a shift a Democratic gain of up to nine seats.
Over the past decade, Wang argues in his newsletter, “Republicans have taken a more aggressive approach to redistribution of districts, and in many places they have already exhausted their gains.”
Wang said no one should advocate for independent state legislatures, in what he calls a “wild west scenario.”
Sweren-Becker said that by largely excluding governors and courts from electoral laws, the theory could nullify existing state protections for voters, create havoc for the state officials who administer elections and, most importantly, open the floodgates to “undemocratic shenanigans.” could.
“We have seen over the past year that more states have introduced, and in some cases passed, legislation that would introduce risks of election sabotage and election interference,” she said.
That would be the nightmare scenario: the House and Senate limit their own ability to challenge state election results, and the Supreme Court gives state legislatures new powers to engage in voter fraud.