The Electoral Count Reform and Presidential Transition Improvement Act of 2022, also known as the ECRA, is a brazen Congressional attempt to take control of federal elections away from elected state legislatures and give it to liberal judges and unelected bureaucrats. Thus, it would likely fall afoul of a Supreme Court decision that would strike down some of the Electoral Count Reform Act’s provisions, a highly respected Constitutional scholar argues.
The ECRA, buried deep in the $1.7 trillion “omnibus” spending package, was passed through the proverbial dead of night during the Christmas season with the assistance of 18 Senate Republicans and 9 House Republicans. The sweeping act would not only change elections in America as we know it, it would place extreme limitations on the ability of voters to obtain recourse through representative bodies for flawed or corrupt elections.
While the ECRA states that the “electors of President and Vice President shall be appointed… in accordance with the laws of the State enacted prior to election day,” it further stipulates that “the executive of each State shall issue a certificate of ascertainment of appointment of electors.”
It also qualifies that, “Any [legal] action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification…” shall be held in the venue of a “Federal district court of the Federal district in which the State capital is located.”
The legislative reform deprives the vice president of the power to return slates of electors to contested states, as Trump demanded that former Vice President Mike Pence to do on Jan. 6, 2021. The ECRA now states that the vice president has solely a ministerial role in presiding over the joint session of Congress when lawmakers certify Electoral College results. Furthermore, Congress is raising the threshold to return a slates of electors to a state to one-fifth of the House and one-fifth of the Senate.
State executives. Federal courts. Higher bar for contesting elections. Keen political observers should be picking up on the theme: More centralized control of state election results.
A Constitutional scholar named Rob Natelson, who taught Constitutional law for twenty-five years and whose scholarly research has been cited numerous times in Supreme Court cases, believes that the ECRA constitutes federal overreach. It is therefore likely to be struck down in some measure by the U.S. Supreme Court.
The fate of the ECRA may hinge in some regard on a forthcoming decision in the Supreme Court case Moore v. Harper, which is expected to be rendered in June. The Court is now deliberating on the North Carolina General Assembly’s claim that state lawmakers have sole authority — independent of state officials and state courts — to regulate federal elections, as stipulated under the Election Clause within the U.S. Constitution.
Professor Natelson’s comments in a recent interview with the Epoch Times are illuminating, particularly because they dispel a handful of convenient myths about the Moore v. Harper case that have been propagated throughout the generally hostile progressive media eco-system.
Natelson, a Senior Fellow in Constitutional Jurisprudence at the Independence Institute, maintains that the revised Electoral Count Act is a “poison bill” and a “probably unconstitutional effort to meddle with state legislative control over presidential elections.”
“The Supreme Court says the manner of choosing presidential electors is under the absolute control of the state legislatures acting alone,” he added. “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.”
Interestingly, Natelson says that claims that the ECRA would “make it harder to overturn a certified presidential election” are “inaccurate and incomplete.” This is because the real issue is that it limits states’ ability to rectify fraud and malfeasance in their own elections.
“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 Constitutional scholar also believes that the legislation is more politically motivated than it might appear to casual observers at first blush.
“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 also highlights that much of the ECRA’s fate will hinge on how the Moore v. Harper decision defines “legislature.” It will greatly be affected the defining the legislative assembly as “standing alone” or if it means “the entire apparatus of the state, including the governor and the courts.”
As reported in the interview, Natelson says that contrary to claims the revised act strengthens democracy, it actually creates “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.”
The ECRA’s passage continues the concerning trend of the federal government seeking to make U.S. elections as undemocratic as possible. Ironically, it is left up to a handful of unelected jurists in black robes to rectify this imbalance in the interest of restoring free and fair elections that are accountable to the People.
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OPINION: This article contains commentary which reflects the author's opinion.