This post originally appeared in GOVERNING.
Disregard for the judgments of courts is a sure sign that democracy is in trouble. Donald Trump’s machinations after the Nov. 3 election centered, fundamentally, on overturning the many court rulings rejecting his claims of fraud. Channeling fomented partisan anger, Trump and his allies sought to replace the verdict of the judiciary with populist resolutions in Congress and state legislatures.
Before our democracy is so tested by fire again, we must reinforce the primacy of the judiciary as the institution best positioned to judge contested elections. That requires pushing back on proposals to increase state legislatures’ role in such disputes and amending the federal Electoral Count Act to remove congressional discretion in the counting of presidential electoral votes.
Judicial supervision of contested elections has become the norm in most democracies around the world. An outlier in this area as in so many, the U.S. allows a considerable role for legislatures. The Constitution, for example, makes the House and Senate “the Judge of the Elections … of its own Members.” North Carolina provides for its Legislature to intervene in a contested presidential election to name electors if disputes are unresolved within 35 days of the vote. Georgia’s GOP has proposed similar ideas, and Arizona’s Legislature is considering a bill giving itself even greater control over contested presidential elections.
Republicans are also looking to involve state legislatures in disputed elections below the presidential level. A proposal from the Georgia GOP would allow the governor, if he or she “objects to a contested certification” of county-level results, to summon the Legislature to certify results on its own or call a new election. This idea dangerously subverts existing Georgia law providing for election contests to be resolved in court.
Deciding a close election entails carefully weighing evidence from opposing sides in light of relevant laws and precedent, tasks much better suited to courts than legislative bodies. Admittedly, some state supreme courts have reputations for partisanship, mostly reflecting the inevitable consequence of electing judges, something very few democracies do. But partisan leaning in the courts is reason for judicial reform, not for giving control of contested elections to much more partisan legislative bodies.
When disputed congressional elections have been judged in the U.S. Senate or House, as the Constitution provides, the majority party has inevitably controlled the process, filtered the evidence and taken the seat in question. Most notoriously, the handling of Indiana’s “Bloody Eighth” congressional election by the Democrat-controlled House in 1985 “helped convince a generation of Republicans that the Democratic Party … was fundamentally corrupt and cynical,” as Jeffrey Toobin put it in Too Close to Call, his book on the 2000 Florida presidential recount.
This year, the House will hear the claim of losing Iowa Democratic congressional candidate Rita Hart. House leadership should have refused to take up the case, since Hart bypassed Iowa’s court-based contestation procedures, and should now ensure that the task force in charge of hearing the case has equal numbers of Republican and Democratic members. In case of a tie, the state-certified win for Republican Mariannette Miller-Meeks should stand.
Very few congressional elections are judged in Congress, primarily because candidates who have lost by significant vote margins usually concede defeat, a norm that Trump may have put at risk. We should require that candidates at all levels pledge to accept the results as determined by election officials and the courts. The Commission on Presidential Debates could set the standard by making such a statement a requirement to access the debate stage.
This principle of the primacy of the judiciary is the key to resolving the problems posed by the Electoral Count Act. That 1887 law tried, unsuccessfully, to settle the vexing issue of how Congress should respond to uncertainty over the validity of a state’s electoral votes. With judicial primacy in mind, a revised Electoral Count Act should require that the Senate recognize and count only electoral votes sent by each state’s supreme court, the institutions best positioned to oversee the states’ post-election processes. A state’s supreme court is uniquely capable of judging whether a popular election for president in the state has failed, which is the only scenario that would allow for a state legislature to intervene and name electors.
The Electoral Count Act also sets the time for the meeting of electors. The challenge here is that in rare, very close elections, such as the 2000 presidential contest, more time is needed for dispute resolution than current law allows. A revised law could call for Congress to consider moving the Electoral College meeting date back for a specific election if so advised by the U.S. Supreme Court.
Taken together, these provisions provide more time for contests when that is needed, prevent legislatures from intervening unjustifiably to name electors on their own, and remove the unnecessary congressional discretion in the counting of electoral votes that Trump’s allies tried to exploit.
This slightly expanded role for state and U.S. supreme courts should be seen in the context of successful, much more comprehensive roles for national courts in other countries. France’s Constitutional Council, for example, is the definitive source of judgment on all national elections, ruling not only on issues of law brought to it, as in the U.S., but directly on who won.
Repairing our post-election processes by affirming and expanding the primary role of the judiciary can help build confidence that disputes will be addressed fairly and stabilize this critical piece of our democracy.