Larry Lessig writes that reform of the Electoral Count Act shouldn’t be rushed and should try to address the problem posed by the independent state legislature doctrine — namely, that state legislatures might claim constitutional authority to miscount or falsely certify votes.
The 1887 Electoral Count Act took for granted that Congress had the power to regulate the process of counting electoral votes. But a nascent theory first birthed by Chief Justice William Rehnquist in Bush v. Gore, and now echoed by at least four justices on the current Supreme Court, could scuttle the foundation for any reform to the Electoral Count Act. It could certainly sabotage any statute that adopted the framework of the 1887 law without substantial modification. And new details of some of the proposed changes to the ECA published in the Washington Post on Tuesday did not include any portion addressing the threat posed by this “independent state legislature theory.” . . .
The “independent state legislature theory” is wrong as a matter of constitutional law. But it would be a mistake of constitutional politics to draft a new ECA that simply ignored it. Instead, Congress should devote extended hearings to the question of how best to neutralize any possible effect from this mistaken theory—especially as the litigation that would test the theory would be likely to happen in the compressed period between Election Day and the electoral vote count on Jan. 6. American democracy cannot afford to wait until the last minute to build a defense against this surprisingly well-adhered-to, if incorrect, theory of legislature power. Instead, Congress should be crafting an ECA reform to avoid the consequences of such a theory, even if it were adopted by a majority of the court.