Moore vs. Harper, argued last week before the Supreme Court, makes the Electoral Reform Act urgent. It must be enacted within days, before the end of this Congress. Republicans won't touch it once they control the House.
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.
In Moore, North Carolina Republicans aim to restore a redistricting map drawn by the GOP-led legislature but rejected as violating the state constitution by North Carolina's supreme court.
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.
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.
Article II of the Constitution requires states to appoint presidential electors "in such manner as the Legislature thereof may direct." And the Electoral Count Act of 1845 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.
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.)
And he pressed Vice President Pence to illegally delay the electoral count so Trump could continue pressuring states. (Thankfully, Pence refused, too.)
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.
This is a distinct possibility. After Arizona gubernatorial candidate Kari Lake contested her loss based on absolutely nothing, the election board in GOP-controlled Cochise County refused to certify the results.
Eventually, Cochise came around. But in a future presidential election, a GOP-controlled state legislature armed with a broad "independent state legislature" theory from Moore v. Harper could seize on this kind of resistance to declare a "failed" election and appoint a slate of fake electors. And neither Congress nor a Vice President could stop them.
This time, democracy wouldn't survive.
Which is why the Electoral Reform Act, now before Congress, is so important. 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.
Other provisions require that governors certify the correct electors by a hard deadline before Congress counts them and allow an aggrieved candidate to trigger expedited judicial review.
Where is the Electoral Reform Act at this point? It has enough Republican support to get it through the Senate. The biggest problem is time. Congress will recess in days. Hopefully, the measure will be attached to the end-of-year spending bill.
Democracy survived in 2020, but how many close calls like this can our system of self-government endure?
Robert B. Reich is an American political commentator, professor and author. He served in the administrations of Presidents Gerald Ford, Jimmy Carter and Bill Clinton. Reich's latest book, The System: Who Rigged It, How We Fix It, is out now.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
