The nightmare scenario of electoral reform

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The ghosts of the 2020 election haunt the US system of government.

exorcism The House and the Senate have in mind the way to exorcise January 6, 2021. with a sedition law, to clarify, among other things, that no, the vice president cannot ignore the certified results of the election and, no, that the states cannot send a list of the contestants for election to Washington.

embrace The Supreme Court, meanwhile, could be on its way to conjuring anti-democratic nightmares if its conservative majority chooses to bless some of the strange legal theory behind this push to cancel the 2020 election.

Disembodied legislatures. some The lawyer who conjured the Republican lawmaker and then-President Donald Trump’s bid to stay in power despite the results of the 2020 election says that the Constitution actually suggests that state legislatures are independent and separate from other governments in governing their states’ federal elections without review by state courts.

For conservative Supreme Court justices who pride themselves on their fidelity to the text of the Constitution to want to hear more about re-textualizing this single word, “legislature,” after more than 200 years makes the Constitution feel creaky and strained, unlike anything else. A solid foundation of Western liberal democracy.

On Capitol Hill, bipartisan proposals in both the House and the Senate would overhaul the Electoral Counting Act, a confusing and poorly written law dating back to when there were actual contested elections — that dictates how Electoral College votes are tallied and counted. .

The House approved its version this week. The Senate version, with 10 Republicans on board to defeat a filibuster, will likely see a vote this year. After election day the two sides can reconcile their differences.

Politifact stacks the House and Senate bills against each other and finds a lot of similarity. The major differences lie in how many lawmakers on Capitol Hill are needed to antagonize a state’s voters and what constitutes a “failed election,” casting doubt on the results of a state’s election. The House bill also gives states more time to resolve election disputes and disputes.

CNN’s report has more details:

A House bill would require the support of a third of each chamber to raise an objection and a majority of votes to sustain that objection. It sets out five specific and narrow grounds for making allegations. The Senate version of the bill needs only a fifth of support in each chamber (raise an objection) and does not limit the 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. That’s why 147 Republicans in both chambers were able to oppose it when Congress convened on January 6, 2021 to secure the election, citing several reasons for doing so.

Read more about the bill passed by the House.

Now is the time for supporters to clear those things up, since none of the House Republicans who supported their bill will be in office come January.

The nine Republicans who supported the House plan either were defeated in the GOP primaries or are not running for re-election.

Most of the Republicans who publicly support the Senate reform bill are retiring, although Sen. Lindsey Graham of South Carolina, a Trump ally, is a cosponsor.

Meanwhile, a large part of the Republicans who will be on the ballot in November (at least (11 candidates for secretary of state and 22 candidates for governor) have expressed, endorsed or shown sympathy for the denial of the 2020 election.

While the House and Senate are considering clearing the procedure, the Supreme Court will hear a case this term this could completely redefine the Constitution, perhaps with unintended consequences.

Born out of Trump’s failed effort to cancel the 2020 elections, the so-called independent state legislature theory says that despite its history and legal precedent, the Constitution says that state legislatures will choose the time, place and manner of elections for the House and Senate, and Congress can change them.

In this case, Moore v. Harper has to do with North Carolina’s new congressional map, which was gerrymandered by the state’s GOP legislature and then redrawn by state courts, which made the map more favorable to Democrats. Because the Constitution doesn’t specifically say that state courts can oversee state legislatures on the issue, proponents of the idea want legislatures to have new power over congressional maps.

If the Supreme Court gives them the new power, he says, state legislatures, often under one-party control, would not be controlled by the normal balance and would be able to act in unexpected ways to influence elections.

Read CNN’s Ariane de Vogue’s in-depth report on the independent state legislature theory.

I spoke with Eliza Sweren-Becker of the Brennan Justice Center, who is a fierce critic of the independent state legislature theory and testified about the theory before Congress earlier this year. He warned that we should not assume the highest The court will accept it simply because four judges have agreed to consider the case and expressed an openness to various theories.

“There is a mountain of material, scholarship, thought and analysis, particularly from the founding period, that reflects that the theory of independent state legislatures is simply a misreading of the Constitution,” Sweren-Becker said.

The Supreme Court is examining the theory of independent state legislatures in the context of congressional maps. And that’s where it could come back to bite Republicans.

Princeton University professor Sam Wang, who tracks the gerrymandering of congressional districts by political parties, argued that Republicans may not exactly run the table in a scenario where lawmakers have been given new power to rewrite congressional maps. Indeed, in many scenarios, it found no real change in the balance of power or choice on Capitol Hill a democratic gain of up to nine seats.

Over the past decade, Wang says in his newsletter, “Republicans have taken a more aggressive approach to redistricting, and have already made gains in many places.”

Wang said no one should promote independent state legislatures, which he describes as a “Wild West scenario.”

Sweren-Becker said that by removing state governors and courts from election law, the theory could nullify existing state protections for voters, create chaos for state officials managing elections and, above all, open the door to “undemocratic democracies.”

“Over the past year we have seen more states introduce, and in some cases pass, legislation that would create the risk of election sabotage and election interference,” he said.

That would be a nightmare scenario: The House and Senate limit the ability to challenge state-submitted election results, and the Supreme Court gives state lawmakers new power to tamper with election results.