August 03, 2022
WASHINGTON, D.C. – U.S. Senator Angus King (I-Maine) today questioned election experts on proposals to reform the Electoral Count Act (ECA) of 1887 and what provisions must to be in any final bill to effectively protect America’s electoral process. In a hearing of the Senate Rules and Administration Committee focused on changes to the ECA, King laid out threats the ambiguous law poses to our democracy, stressed the urgent necessity of reforms, and shared insights from the more than a year of work he’s done on modernization efforts. Senator King has been a leader on reforming the ECA, and in February, released a discussion draft with Senator Amy Klobuchar (D-Minn.) and Dick Durbin (D-Ill.) to inform Senate-wide efforts to update the law to reflect 21st century threats.
“This is not a partisan issue. This is a mechanical issue. This is a rules issue that involves how our government should work, no matter who's in charge,” said Senator King. “This coming January 6, 2025, a Democratic vice president will be in that chair and I just think that what we have to emphasize, that we shouldn't try to game this out on a partisan basis and think that this favors one side or the other. I don't think it does, because there's no telling what the circumstances will be in particular states or here in the Congress in future years.”
“The very first class I took in government in college – the very first class… the professor said: ‘the thing that America has achieved that has been rarely achieved in world history is the peaceful transfer of power.’ That's unusual in world history. And the way we've achieved that is by having a written constitution and a set of rules that have guided us,” Senator King continued. “If you have ambiguity and confusion, that opens the way to conflict and ultimately violence, as we saw on January 6. So the core concept is the peaceful transfer of power. And underlaying that is a clear set of rules and principles that people can all understand and accept in advance.”
“So I don't think there's a more important matter before us in this Congress, and it's one that I hope that we can resolve quickly. And, again, it should be on an entirely bipartisan basis, and it's a fundamental issue that goes to the heart of our democratic system,” Senator King concluded.
After his opening statement, King questioned election law experts Bob Bauer and Derek Muller about the dangers and implications of the “independent legislature” theory which gives vast power over elections to state legislatures.
Senator King: “I want to raise an issue that hasn't been discussed. All of you very comfortably asserted that this was constitutional, that the [Electoral Count Reform Act] was constitutional. Mr. Muller, I think you used the term well within constitutional balance. I'm worried about the implications of the so called independent legislature theory. And the theory basically holds that there's a subtle difference between the election clauses, the clause in article one and the election clause in article two. Article one says, ‘legislatures and the state shall set election rules’, but then semicolon, ‘Congress may amend or override those rules. In the election clause for the president it talks about, ‘the state shall select electors in a manner the legislature shall direct.’ There's no provision for congressional express provision as there is in article one. There’s no provision for congressional — no express provision as there is in article one. And there are those who assert, and apparently we now have three Justices – Thomas, Alito, and Gorsuch – who appear to accept this independent legislature theory that nothing can override and they can do anything they want whenever they want. Mr. Bauer, let me start with you. Since you're a graduate of the same law school that I am, I'll give you the privilege of beginning. What do you think of this theory? And is this a concern in the context of what we're discussing here today?”
Mr. Bauer: “No, I don't believe it is. There's been a lot of different meanings assigned to the term independent state legislative doctrine. But I think one thing is very clear, which is whatever state legislatures may do in the matter of appointing electors, they cannot violate other constitutional provisions. They are still faced with the requirement that their actions be consistent with the due process and equals protection clause with the right to vote under the first amendment. So there are constraints and I don't think in the most extreme form that somebody might suggest that one might understand independent state legislature doctrine. I don't think that would be an accurate statement of what is available to state legislatures under our constitution.”
Senator King: “Mr. Muller, your thoughts?”
Mr. Muller: “Congress has the power to define the time of choosing electors. One of the really important things this bill does is by eliminating the fail-to-make-a-choice provision and saying all of the rules have to be in place as of election day, then it puts in place that if you're going to hold a popular election, we're going to follow those rules, there's no opportunity to show up later and do something else. And so while there might be in the most aggrandized theory of the independent state legislature to say the legislature can do whatever it wants, perhaps that's true, but it has to do it on the first Tuesday after the first Monday in November, and it has to have laws in place well before that election.”
Senator King: “So the power in the Congress to set the date is a constraint on the legislature acting retroactively?”
Mr. Muller: “Correct.”
Senator King: “That's reassuring. Mr. Gore, do you agree?”
Mr. Gore: “I do agree that the independent state legislature doctrine is not implicated by the Reform Act, and I agree with Professor Muller's reasons for that and I'll just add that this provision that clarifies that the governing law for presidential elections is state law enacted by state legislatures prior to Election Day, further allays any concerns there might be under that doctrine.”
In February, after months of consultation with experts, elections officials, lawyers, and historians, Senator King released a draft Electoral Count Modernization Act to establish clear, consistent, and fair procedures for the counting and certification of electoral votes for the presidency. He intended that his draft with Senator Amy Klobuchar (D-Minn.), Chair of the Senate Rules Committee, and Senator Dick Durbin (D-Ill.) could assist the discussions other groups and Senators were having about reforming the outdated law.