Counterpoint: The Electoral Count Act's poison pill

As co-authors of several scholarly articles on presidential elections, we read with interest the Aug. 7 editorial, "Protect democracy, pass electoral reform," and the Aug. 4 story by Hunter Woodall, "Klobuchar committee considers changes to Electoral Count Act." We strongly agree that the amendments to the Electoral Count Act discussed in are "an excellent beginning" and also that "even more stringent steps are necessary."

Yet this otherwise admirable bill contains a poison pill that might devastate all its welcome changes.

The almost hidden danger arises from the so-called Independent State Legislature Doctrine (ISLD) — which alleges that state legislatures have exclusive power over federal elections, to the exclusion of state constitutions and state courts. This doctrine supports egregiously partisan gerrymandering and even would take constitutional review authority away from state courts.

It further asserts that any state legislature has "plenary power" to appoint a state's presidential electors. If a legislature so chooses, it can take away the people's power to vote for president.

Hidden away in the otherwise innocuous definition of "Election Day" in Section 102 of the draft Electoral Count Act is this phrase: "in the case of a State that appoints electors by popular vote ... ."

The extremely dangerous and clear implication is that a state need not allow its voters to appoint its presidential electors! The choice of who will become president can be left entirely to state legislatures, and not to the people.

Next term, in a North Carolina case, the U.S. Supreme Court will decide in Moore v. Harper whether the ISLD can apply to partisan legislative gerrymandering for the U.S. House. A number of justices have already suggested their sympathy for this claim. Yet, as events following the last presidential election make clear, there could hardly be a worse time to suggest that Congress will allow state legislatures to decide the presidency themselves.

Our research shows that neither the framers of the Constitution nor attention to history support this undemocratic doctrine. Particularly when presidential elections were close — in 1800, 1812 and 1824 — exercise of such legislative power was widely condemned as an unconstitutional "usurpation" of sacred rights that belong to the people. The practice basically was abandoned in the face of a veiled threat that Congress might not count electoral votes from such usurping states. Even South Carolina — the last holdout — abandoned it in 1865 on the basis that it had been, indeed, a "usurpation" and a "gross error."

Further, our research has unearthed a nearly forgotten and very different bipartisan consensus. In the summer of 1868, confronted with the emerging tide of white supremacist violence and political terror, some newly reconstructed Southern states proposed that their legislatures would choose the presidential electors. This was condemned by leading politicians and newspapers across the nation.

Indeed, several pointed out that the proposal violated the principle of universal suffrage, which had been embodied in Section 2 of the recently ratified 14th Amendment. Section 2 specified a substantial penalty if "the right to vote at any election for the choice of electors for President and Vice President of the United States … [was] denied ... or in any way abridged, except for participation in rebellion, or other crime." Any state that abridges this fundamental right to vote is to have its political representation in the House and in the Electoral College reduced.

Tragically, since 1868 a great many ways have been found to abridge the vote, yet for 150 years no one had the temerity to propose taking a state's presidential election away from its people. That very threat emerged only in the current, highly charged division among the states. It is exactly the wrong time for Congress even to hint that state legislatures could take this monumentally important right to choose our president away from the voters.

Mark Bohnhorst, of Minneapolis, is a retired public sector attorney. Michael W. Fitzgerald is professor of history, St. Olaf College. Aviam Soifer is professor of law and former dean, University of Hawaii, William S. Richardson School of Law.