The States’-Rights Rationale for Election Reform

Conservative legal luminary and former D.C. Circuit Court of Appeals judge Michael Luttig. Photo: US Senate

Lovers of democracy already owe a debt of gratitude to conservative legal luminary Michael Luttig. The more we learn about the events of January 6, 2021, the more it appears Luttig was the decisive source of advice for then-Vice-President Mike Pence that convinced him to reject Donald Trump’s pleas that he overturn the 2020 election results while presiding over a joint session of Congress. Pence’s last-minute statement even quoted Luttig, who said the vice-president’s role in the process was limited to counting, not judging, electoral votes.

Now Luttig, a former D.C. Circuit Court of Appeals judge, has offered another service in the cause of preventing a 2024 election coup. In a New York Times op-ed published Monday, he gave a states’-rights rationale for reforming the Electoral Count Act of 1887 despite Donald Trump’s loud if incoherent objections. Luttig writes:

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington. If the Democrats are willing to divest themselves of the power to decide the presidency that the 49th Congress wrongly assumed 135 years ago, then it would be the height of political hypocrisy for the Republicans to refuse to divest theirs.

As you may recall, Trump lawyer John Eastman, in his infamous memo, argued strenuously to Pence that the ECA was unconstitutional on grounds that it abridged the lordly powers allegedly assigned to the veep by the 12th Amendment. Luttig, for whom Eastman once clerked, rejected that argument (as do virtually all legal scholars) decisively in his advice to Pence. But Luttig does believe the provisions of the ECA giving Congress a relatively easy and unrestricted right to reject state-certified electors is an unconstitutional abrogation of the Article I power of the states to regulate elections. He explains:

Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states. In fact, the Constitution gives Congress no role whatsoever in choosing the president, save in the circumstance where no presidential candidate receives a majority of the electoral votes cast.

Luttig does acknowledge that there can be ambiguity in determining which electors states have properly certified, but instead of the vice-president or Congress being given key roles in resolving such disputes, he argues that the courts are better positioned to police the process while respecting constitutional boundaries:

Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.

The former judge also reminds Republicans that Democrats are just as capable of abusing the ECA if the GOP, under pressure from Trump, refuses to go along with the reforms he recommends. And he suggests that by repairing evident breaches in the system for confirming electoral votes Republicans may save themselves a world of grief down the road since “Mr. Trump is once again counting on a sympathetic and malleable Congress and willing states to use the Electoral Count Act to his advantage.” Ignoring Trump’s unintelligible ramblings about ECA reform will be a lot easier than resisting a clear and open Trump demand in 2024 and 2025 for an election coup.

Such is Luttig’s prestige on the right that Greg Sargent observes: “This should be a seminal moment in the debate over the ECA.” We’ll see. His opinion certainly (if barely) worked magic with Mike Pence on January 6, 2021. Perhaps the right question to ask is whether Trump’s power over his party has actually grown stronger since then.

The States’-Rights Rationale for Election Reform