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King asks experts about approaches to strengthen and modernize voter count law

By on August 3, 2022 0

WASHINGTON DC U.S. Senator Angus King (I-Maine) today quizzed election experts on proposals to reform the Electoral Count Act (ECA) of 1887 and what provisions must be included in any final bill to effectively protect the American electoral process. During a Senate Rules and Administration Committee hearing focused on changes to the CEA, King laid out the threats the ambiguous law poses to our democracy, stressed the urgent need for reform, and shared the ideas of over a year of work he has done on modernization efforts. Sen. King has been a leader in CEA reform, and in February released a draft discussion with Sen. Amy Klobuchar (D-Minn.) and Dick Durbin (D-Ill.) to inform efforts Senate-wide to update the law to reflect 21st century threats.

“This is not a partisan issue. This is a mechanical issue. This is a rules issue that involves how our government should operate regardless of who is in charge,” said Senator King. “On January 6, 2025, there will be a Democratic vice president in that chair and I just think what we need to point out, that we shouldn’t try to play this on a partisan basis and think it favors one side or the other. I don’t think that’s the case, because it’s unclear what the circumstances will be in some states or here in Congress in the years to come. »

“The very first course I took in government in college – the very first course…the professor said, ‘the thing that America has done that has rarely been done in the history of the world is the peaceful transfer of power.’ This is unusual in the history of the world. And the way we have achieved this is to have a written constitution and a set of rules that have guided us,” Senator King continued. “If you have ambiguity and confusion, that sets the stage for conflict and ultimately violence, as we saw on January 6. The central concept is therefore the peaceful transfer of power. And that underpins a clear set of rules and principles that people can all understand and agree to in advance.

“So I don’t think there’s a bigger issue before us in this Congress, and it’s one that I hope we can resolve quickly. And, again, this should be on a fully bipartisan basis, and this is a fundamental issue that goes to the heart of our democratic system,” Senator King concluded.


After his opening statement, King asked election law experts Bob Bauer and Derek Muller about the dangers and implications of the “independent legislature” theory that gives state legislatures sweeping power over elections.

Senator King: “I want to raise an issue that has not been discussed. You all very comfortably said that it was constitutional, that the [Electoral Count Reform Act] was constitutional. Mr Muller, I think you have used the term correctly in respect of the constitutional balance. I worry about the implications of the so-called independent legislature theory. And the theory basically holds that there is a subtle difference between the election clauses, the article one clause and the election article two clause. The first article says that “the legislatures and the state shall fix the rules for elections”, but then the semicolon, “Congress may modify or cancel these rules”. In the president’s election clause referred to, “the state shall select electors in such manner as the legislature shall dictate.” There is no provision for an express provision of Congress as there is in Article 1. There is no provision for Congress – no express provision as there is in Article 1. And there are those who argue, and apparently we now have three justices – Thomas, Alito and Gorsuch – who seem to accept this independent legislative theory that nothing can win and they can do whatever they want whenever they want. want. Mr. Bauer, let me start with you. Since you graduated from the same law school as me, I give you the privilege to begin. What do you think of this theory? And is that a concern in the context of what we’re discussing here today? »

Mr Bauer: ” No, I do not think so. There have been many different meanings attributed to the term independent state legislative doctrine. But I think one thing is very clear, and that is that whatever the state legislatures can do with respect to elector appointments, they cannot violate other constitutional provisions. They still face the requirement that their actions comply with due process and the Equal Protection Clause with the right to vote under the First Amendment. So there are constraints, and I don’t think anyone can suggest, in the most extreme form, that the doctrine of independent state legislature can be understood. I don’t think that would be an accurate statement of what is available to state legislatures under our constitution.

Senator King: “Mr. Muller, your thoughts?

Mr Muller: “Congress has the power to define when voters choose. One of the really important things this bill does is that by taking out the no-choice clause and saying that all the rules have to be in place on election day, it puts in place that if you are going to hold a popular election, we will follow these rules, there is no possibility of showing up later and doing something else. And so, while there may be in the broadest theory of the independent state legislature to say that the legislature can do what it wants, that may be true, but it must do it the first Tuesday after the first Monday in November, and she has to have laws in place long before this election.

Senator King: “So the power of Congress to set the date is a constraint on the legislator acting retroactively?”

Mr Muller: “To correct.”

Senator King: ” It’s reassuring. Mr. Gore, are you okay?

Mr. Gore“I agree that the doctrine of the independent legislature of the state is not implied by the Reform Act, and I agree with Professor Muller’s reasons thereon and will simply add that this provision that clarifies that the law governing presidential elections is the law of the state enacted by the state legislatures prior to Election Day, further allays any concerns this doctrine may have.

In February, after months of consultation with experts, election officials, lawyers and historians, Senator King released a draft Law on the modernization of the electoral count establish clear, consistent and fair procedures for the counting and certification of electoral votes for the presidency. He intended his project with Sen. Amy Klobuchar (D-Minn.), chair of the Senate Rules Committee, and Sen. Dick Durbin (D-Ill.) to help discussions that other groups and senators had on outdated law reform.