Clinical Experiences with Electoral Count Act Reform and the Independent State Legislature Theory

By Zachary Goldstein ’23

For those members of the Class of 2023 who are interested in the intersection of law and politics, our time at law school has been anything but calm. Over the three years, we have witnessed two Supreme Court confirmation hearings, the 2020 presidential election and the efforts by some to subvert its results, the January 6th insurrection, efforts to pass historic voting rights legislation at the federal level, battles in state courts following the decennial census, and a variety of cases at the Supreme Court aimed at narrowing the Voting Rights Act. While all of these events have provided those in the world of law and politics cause for concern, two areas in particular have captured much of the election law world’s attention over the past year: Electoral Count Act reform and the independent state legislature theory.

Since the contested Election of 1876, the principal law governing the appointment and counting of presidential electors came from the Electoral Count Act (ECA), an 1887 law famous for obfuscating as much as it clarified. Among other things, the ECA provided a framework for the finality of electoral slates sent to Congress from the states, as well as broad instructions for how Congress was to count the electoral votes cast. While the subsequent century or so came and went without any major ECA-related controversies, the chaos fomented by Donald Trump following his loss in the 2020 Election brought some of the ECA’s many weaknesses to light. First, the ECA left unclear what role, if any, the vice president played in the electoral count. This led Trump and his supporters to engage in a pressure campaign aimed at then-Vice President Mike Pence, hoping to force Pence to unilaterally discard electoral slates from states Joe Biden won. Second, the ECA only required one member of the House and one member of the Senate to jointly object to a state’s electoral slates in order to force the individual chambers to debate that objection. This low threshold allowed for politically-motivated objections despite no evidence of any issues with the electoral votes from those states. Finally, Trump and his team attempted to exploit the ECA’s ambiguous “failed election provision” to have state legislatures appoint competing slates of electors in contravention of the actual results.

These weaknesses and their dire consequences on January 6th led to bipartisan interest in substantively reforming the ECA ahead of future presidential elections. As part of the Democracy & Rule of Law Clinic, I worked in the fall of 2021 with attorneys from Protect Democracy to analyze various provisions of proposed statutory text. Our goal was twofold: (1) confirming that the newly reformed statute would addresses the weaknesses made evident following the 2020 election, and (2) ensuring that the new statute could withstand constitutional scrutiny. Protect Democracy’s efforts, including that of the Democracy Clinic, helped to ensure that the ultimate text passed as part of the 2022 year-end omnibus bill addressed the original ECA’s core deficiencies in a way that could withstand future tests.

At the same time as ECA-related chaos was occurring as part of the aftermath of the 2020 election, those in the election law world were also being treated to a look back at one of the most infamous cases in U.S. history, Bush v. Gore. As part of his concurrence in Bush, then-Chief Justice Rehnquist suggested that the Electors Clause of the Constitution empowered state legislatures to direct the manner for appointing presidential electors in their states, without review by state courts. Similar language in the Elections Clause has led some to apply the same argument to that provision as well. This “independent state legislature” theory (ISLT) took on new life when Trump’s allies attempted to use it to argue that interventions by state courts to protect the voting rights of individuals in those states during the 2020 election improperly infringed on the state legislatures’ unilateral power under the Electors and Elections Clauses. While nearly every federal court rebuffed these challenges, members of the democracy community recognized that ISLT challenges to state court interventions would only continue as the Supreme Court curtailed federal avenues for voting rights cases and state courts became the only judicial option.

As part of a team working with Protect Democracy in the Democracy & Rule of Law Clinic, I helped to assemble a survey of the variety of ways in which state courts have interpreted, applied, and overturned state election legislation. This survey helped us to understand the sheer breadth of possible difficulties that might arise if the Supreme Court were to embrace any form of the ISLT. While the boundaries of the chaos that would ensue were not yet clear, one thing was certain: ISLT had the potential to upend election administration as we know it in the US and presented a fundamental challenge to multi-century understandings of federalism and intra-state political processes.

These worries proved prescient when the Supreme Court granted certiorari in Moore v. Harper, a case arising out of North Carolina where the Republican-controlled state legislature seeks to challenge the state supreme court’s decision to overturn the legislature’s gerrymandered congressional map as violative of the state constitution. The legislature argued that under the ISLT, the Elections Clause empowered the legislature with the ability to direct the manner of congressional elections without review by the state courts or being beholden in any way to the state constitution.

While participating in the Election Law Clinic this past fall, I had the opportunity to draft portions of the Clinic’s amicus brief in Moore on behalf of three election law scholars, including Harvard’s own Prof. Nicholas Stephanopoulos. Our brief highlighted the multitude of on-the-ground issues that will arise if the Court accepts any form of the ISLT, including: preventing the much-needed delegation to state and local officers to perform much of the work of election administration; creating distinct rules governing federal and state elections; resurrecting “zombie” bills passed by state legislatures but vetoed by governors; embroiling federal courts in state law dispute with which they are deeply unfamiliar; displacing entrenched state court practices with regard to interpretation of state election codes; and drawing into doubt the validity of laws enacted pursuant to legislatively-referred ballot referenda. The breadth of the issues our brief addressed reflects the wide-spread chaos that the ISLT has the potential to unleash. While there did not seem to be a majority of the justices at oral argument interested in the strongest form of the theory, a decision on the ISLT’s future may be delayed, as the North Carolina legislature is seeking review of the state-level decision following a change in the state supreme court’s partisan composition after the 2022 midterm.

The opportunity to work on both ECA reform and confronting the independent state legislature theory as part of my clinical experiences at HLS has allowed me to understand the real, on-the-ground impact of the doctrine I’ve learned in my classes. As these issues continue to develop, I look forward to seeing how the Democracy & Rule of Law and Election Law Clinics continue to work at the forefront of positive, pro-democracy change.