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Congress’s new attack on democracy & the Constitution

Congress’s new attack on democracy & the Constitution

This essay first appeared in the Dec. 27, 2022 Epoch Times.

Lying deep within Congress’s inflated and inflationary 4,155-page spending package is an attack on both democracy and the Constitution. Congress calls this nasty piece of work the “Electoral Count Reform and Presidential Transition Improvement Act of 2022.”

The mainstream media would have you believe this measure merely updates an archaic law and forestalls another Jan. 6-style Capitol riot. They are misleading you.

In fact, this measure cripples state lawmakers’ ability to address defective presidential elections. It also tries to re-write the Constitution. The “Electoral Count Reform and Presidential Transition Improvement Act” will foster confusion, injustice, lawsuits, and corruption—or all four.

The Attack on Democracy

Imagine this hypothetical scenario (which from recent events we know isn’t so hypothetical):

In the 2024 election, voters in State X cast ballots for presidential electors. A few days later, the election administrator of State X announces the results. But by then evidence has surfaced showing that the results are wrong: Due to the incompetence of election officials, particularly in the largest county, vote-counting was messed up. The announced tallies are close, but because of the confused situation, no one really knows whether the Republican or Democratic slate won.

Before the passage of this new law, the legislature of State X had several options. It could (1) wait for a recount or order one itself, (2) order a new, snap election limited to presidential electors—probably in early December, either statewide or in the corrupted county, or (3) if a new election is not practical, hold hearings to find out which slate probably won, and appoint that slate as presidential electors.

After the passage of the “Electoral Count Reform and Presidential Transition Improvement Act,” the situation becomes radically different. Here are the options the state legislature now has: (1) do nothing and hope someone sues. Period.

It doesn’t matter how bad the corruption has been. The new law says the decision of the executive officer is final. That’s usually the same person who oversaw the defective election.

In theory, a losing candidate can sue in federal court. But that’s unlikely to provide justice: The federal court rules governing post-election cases are too strict. The law effectively bans suits in state courts, even though state judges usually understand local election procedures better than federal judges do.

Thus, presidential election decisions are taken away from the people’s elected representatives and are handed to administrators and judges. State lawmakers can do nothing to assure the people’s will is respected. That’s an attack on democracy.

The Constitutional Background

The “Electoral Count Reform and Presidential Transition Improvement Act” is also an attack on the Constitution.

As I explained in a 2019 Epoch Times column, the Constitution’s framers balanced many factors to arrive at a presidential election system that works. Here’s a summary of that system:

The Constitution assigns some federal duties to assemblies that aren’t part of the federal government. The courts call those duties “federal functions” (pdf). The Constitution assigns some of these “federal functions” to state legislatures. State lawmakers (1) act in the constitutional amendments process, (2) set the rules for congressional elections, and (3) set the rules for choosing the state’s presidential electors. Before the 17th Amendment, the Constitution also empowered state lawmakers to select U.S. senators.

The Constitution says that, within some limits, Congress may override state rules for congressional elections (pdf). But it may not override state rules for presidential elections. The framers wanted to keep Congress out of presidential elections as much as possible. The risk of corruption was too great.

Accordingly, the Constitution permits Congress to intervene in only three small ways. First, Congress may designate a “time” (necessarily uniform) when we choose electors—that is, Election Day. Second, it may designate one day when the electors vote for the president and vice president. Third, a joint session of Congress under the chairmanship of the vice president counts the electoral votes. This also is a “federal function.” This joint session is purely a counting body; it doesn’t meet as the nation’s legislature.

Under the new law, Election Day continues to be the first Tuesday after the first Monday in November, but it changes the day for Electoral College voting from the first Monday after the second Wednesday in December to the following day. That’s one part of the law that isn’t a problem.

Except for those three minor exceptions, the Constitution says state legislatures’ control over the choice of presidential electors is virtually absolute. In the language of the Supreme Court, it’s “plenary.” Congress must stay out.

What Is the ‘State Legislature?’

When the Constitution gives a federal function to a state legislature, does “legislature” mean the representative assembly acting alone? Or does it mean the state’s entire legislative process, including the governor’s signature, initiative and referendum, and judicial review?

The usual answer is “the representative assembly acting alone.” This was the rule when the legislatures elected U.S. senators. In 1920, the court announced it was the rule for constitutional amendments. In 1892, the court announced it was the rule for choosing presidential electors (pdf). The court reaffirmed the 1892 case in 2000 (pdf) and again in 2020 (pdf).

The principal exception to the “representative assembly acts alone” principle is in congressional elections. In 2015, the court decided by a 5–4 majority that when setting the rules for congressional contests, “state legislature” includes the entire state legislative procedure, including the governor, voter initiative, etc. (pdf). But that ruling is up for reconsideration this year, and it may not survive.

Congress’s Attack on the Constitution

The “Electoral Count Reform and Presidential Transition Improvement Act” attacks the Constitution in three ways. First, it purports to fix in law the procedures for future congressional electoral vote counting sessions. As I explained in a March 2022 Epoch Times essay, federal functions usually can’t be regulated by law. Any joint session of Congress can change its procedures on the spot whenever it wants. Still, this aspect of the new law is relatively harmless.

More seriously, the new measure purports to take away power the Constitution gives to state legislatures acting alone and give it to the state executive and the federal courts.

Finally, the new measure tries to deny the state legislature—even with the agreement of the governor and courts—the right to address voting irregularities. It does allow the legislature to respond to “force majeure” events, but that term usually means only natural catastrophes, not voting irregularities. And even in the case of force majeure, Congress now says the legislature must have predicted the emergency by enacting previous legislation!

There’s more. Congress’s new statute not only requires “the executive of each State” to certify the appointment of electors but also makes that certification binding even if it’s clearly wrong.

In addition, the statute’s various mandates on the state executives violate the Supreme Court’s 10th Amendment precedents. Those precedents say that Congress can’t turn state officials into its own servants.

And the law cuts state courts out from adjudicating election disputes, which isn’t only foolish—state courts generally know their own election laws better than federal courts do—but may also be another constitutional violation.

So the practical defect in the “Electoral Count Reform and Presidential Transition Improvement Act” is that it likely will increase cases of electoral corruption. The legal defect is that the Constitution assigns power over presidential elections to state legislatures—not to executives, bureaucrats, judges, or Congress.

Was This Law Really Necessary to Prevent Another Jan. 6?

The answer is “no.” To the extent that Jan. 6 rioters were merely trespassing, the answer is better law enforcement: For example, if the police don’t want people in a building, then the police shouldn’t let them in.

To the extent that the rioters wanted the vice president to stop the electoral vote count, that was impossible. He was the presiding officer of the joint session of Congress. If he tried to stop the proceedings, there would have been an appeal from the floor—that’s standard parliamentary procedure. Then the Democratic majority would have reversed his decision.

And after the presidential electors voted on the nationally designated day, it was legally impossible to replace them anyway.

Competent and unbiased constitutional scholars understood all this under prior law. There was no harm in Congress affirming it. But there was no need to attack democracy and the Constitution.

What Now?

In Congress’s rush to cut a deal and continue its inflationary spending orgy, it has attacked a basic constitutional rule honored for over two centuries.

It has attacked every state lawmaker in the country. It has attacked democracy itself.

This is yet another example of congressional dysfunction—passing a huge and faulty bill “so we can see what is in it.” The fact that members of both parties voted for it shows once again that “electing good people,” while always a sound idea, isn’t a viable solution for a structural problem.

A cure for congressional dysfunction will require the state legislatures to authorize a convention to propose constitutional amendments imposing term limits and other limits on our runaway Congress. Short of revolution—which no sane person wants—nothing else will suffice.


Rob Natelson