Constitutional Scholar: Revised Elections Law in $1.7 Trillion Spending Bill May Not Survive Legal Scrutiny
Constitutional Scholar: Revised Elections Law in $1.7 Trillion Spending Bill May Not Survive Legal Scrutiny

By John Haughey

With the U.S. Senate on Dec. 22 approving the $1.7 trillion omnibus spending package that funds the federal government through September, the House is expected to approve it quickly and send it to President Joe Biden to sign before the new year.

The 4,155-page bill includes $858 billion for the military, $772 billion for domestic programs, $50 billion in assistance to Ukraine, $40 billion in emergency disaster recovery aid, a ban on the Chinese-owned app TikTok on government devices, and, among a raft of other programs and initiatives, the Electoral Count Reform and Presidential Transition Improvement Act of 2022.

The measure amending the 135-year-old ‘Electoral Count Act’ was co-sponsored by Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.V.) and adopted in a 68–29 vote as part of the appropriations package.

In a joint statement after the spending bill was sent to the House with the updated elections law attached to it, Collins and Manchin praised the measure as an example of bipartisan cooperation.

“Our bipartisan group worked tirelessly to draft this legislation that fixes the flaws of the archaic and ambiguous Electoral Count Act of 1887 and establishes clear guidelines for our system of certifying and counting electoral votes for president and vice president,” they said in a statement. “We are pleased that our legislation has passed the Senate and are grateful to have the support of so many of our colleagues. We look forward to seeing this bill signed into law.”

Some constitutional scholars, however, say the updated Electoral Reform Act may not survive legal scrutiny, especially with the U.S. Supreme Court expected in June to rule on the North Carolina General Assembly’s claim that, under the Election Clause within the U.S. Constitution, state lawmakers are accorded sole authority—independent of state officials and state courts—to regulate federal elections.

The case Moore v. Harper was heard before the Supreme Court on Dec. 7. The ultimate ruling could validate, reject, or encode in part the “independent state legislature doctrine.”

The doctrine is rooted in two U.S. Constitution Section 4 articles: Article I, which declares state legislatures have sole authority to determine “times, places and manners of holding elections for senators and representatives” and Article II, which states, “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors” in presidential elections.

With Moore v. Harper being deliberated by the Supreme Court, among those questioning the reform measure’s legality is Robert G. Natelson, a Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, Colorado.

He maintains the revised Electoral Count Act is a “poison bill” and a “probably unconstitutional effort to meddle with state legislative control over presidential elections.” 

Natelson, a former University of Montana law professor and 2000 Montana gubernatorial candidate, has served as a consultant to state legislatures on constitutional elections law, notably Arizona following the 2020 elections, and is among few experts who’ve written extensively about the Electoral Clause and the independent state legislature doctrine, including a March essay published in The Epoch Times.

While most media coverage and analyses regarding the independent state legislature doctrine convey the impression that it is but a theory, Natelson maintains that it’s actually long-settled law affirmed in various court rulings since 1798 with a notable affirmation in 1892’s McPherson v. Blacker ruling as well as in “language in Bush v. Gore” following the 2000 election.

“They’re talking about how this was ‘without precedent.’ That’s untrue. The independent state legislature doctrine dates to a Supreme Court decision in 1798” with “1920 amendments and 1922 amendments,” he said. “A lot of people are simply unaware.”

The law is clear, Natelson told The Epoch Times in a phone interview and email exchanges shortly after the Senate adopted the spending package on Dec. 22.

 “The Supreme Court says the manner of choosing presidential electors is under the absolute control of the state legislatures acting alone,” he said. “This bill would tie the state legislatures’ hands by injecting state governors, judiciaries, and federal courts into the process.”

As adopted, the act “also would prevent state legislatures, even if they do have the cooperation of the governor, from addressing 2020-style problems when popular votes are inconclusive,” Natelson said. “Instead, whatever slate of electors was certified by the state elections officer would be conclusive on Congress.”

He said claims that the revised measure—initiated and adopted as “a direct response to the Jan, 6 attack” on the U.S., Capitol—would “make it harder to overturn a certified presidential election” are “inaccurate and incomplete.”

“The Constitution and federal law already prevented the Jan. 6 efforts to change slates of presidential electors,” Natelson said. “What the bill really would do (is) neuter state legislatures and prevent them from responding to fraud or other irregularities in the period between the popular election and the time the Electoral College votes in December.”

The revised elections measure is more politically motivated than most people realize, he said.

“Apparently another goal is to move power away from conservative state legislatures and toward more liberal judges and bureaucrats,” Natelson said. “It probably also is an attempt to influence the Supreme Court’s decision” in Moore v. Harper.

He acknowledged his interpretation and concern is “nuanced” and, to some extent, dependent on whether the Supreme Court in its Moore v. Harper deliberations defines “legislature” as stated in the Constitution “means the legislative assembly standing alone, or if ‘legislature’ means the entire apparatus of the state, including the governor and the courts.”

The stand-alone definition is “North Carolina’s argument,” Natelson said. “I don’t necessarily agree” in the context of elections law, but the revised act could have unintended consequences diminishing state legislatures’ capacities on a range of other issues when performing “a federal function” such as the appointment of U.S. Senators.

Until the 1913 adoption of the 17th Amendment, U.S. Senators were appointed by state legislatures, not elected by popular vote. Although preempted by the 17th Amendment, that authority is still technically vested with legislatures as stated in Article I, Section 3 of the Constitution, which reads, “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six years.” 

The revised act could create confusion regarding “a whole set of duties and powers in the Constitution that deal with the courts and federal functions, which is not exclusive to Congress and federal agencies, which are exercised by persons and entities outside the federal government,” Natelson said, noting an example is “jury members in a federal court proceeding—they are exercising constitutional power even though they are not part of the federal government.”

He said contrary to claims that the revised act strengthens the nation’s democracy, it actually created “a very serious democracy problem.”

“If you have a situation where it is not certain who won the popular vote, who then decides? What is going to happen next? Right now, who decides is the democratically elected state legislature. They are the ones who are accountable for it,” Natelson said. “With this bill, it would be the courts and (state’s) secretary of state.”

The bill “says the certification is by the ‘chief elections officer of the state’ and the judiciary,” he said. “The ‘chief elections officer’ of the state may not be elected in some states, is an appointed position in some states. That creates a situation where a bureaucracy or the courts are going to be deciding an election that is contested instead of a democratically-elected body.”

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