BREAKING: Senate Introduces Bipartisan Legislation to Update the Electoral Count Act

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Sen. Susan Collins (R-ME), Sen. Joe Manchin (D-WV) and 14 cosponsors introduced the Electoral Count Reform and Presidential Transition Improvement Act of 2022, bipartisan legislation to update the outdated law from 1887 that outlines procedures for casting and counting Electoral College votes in presidential elections.  

WASHINGTON, D.C. – Trevor Potter, founder and president of Campaign Legal Center and Republican Former Chairman of the Federal Election Commission, issued the following statement:  

“We thank Sen. Collins and the bipartisan working group for introducing this vital proposal, and we urge Congress to pass it without delay. The introduction of this bipartisan legislation represents months of tireless work by experts spanning the political spectrum to develop necessary and commonsense updates to the Electoral Count Act. While there is much more work to be done to protect elections and voters at the state and federal level, this bill provides critical safeguards for the results of presidential elections.  

“The next presidential election could be one of the most contentious in history, and it should be decided by voters, not partisan politicians. As we saw following the 2020 election, bad actors egregiously attempted to exploit the old language in the Electoral Count Act to throw out key states’ certified presidential election results. This kind of blatant manipulation threatens the democracy we cherish as Americans. The good news is that Congress has the power to update the Electoral Count Act and bring it into the 21st century. CLC strongly urges Sens. Schumer and McConnell to move on this bipartisan proposal to protect the will of the people.” 

Background on the Electoral Count Act: 

Following the 2020 election, partisan actors attempted to exploit loopholes in the Electoral Count Act (ECA). While attempts to reject state-certified election results and overrule the will of voters were unsuccessful, gaps and ambiguities remain in the ECA and are ripe for manipulation.  

In 2021, CLC convened constitutional experts from across the country and representing all political viewpoints to determine important updates to modernize the ECA. Some of the updates that these experts felt were necessary are included in the bill introduced today:   

  1. Prohibiting state legislatures from overruling their own voters.

  2. Resolving disputes about electors and electoral votes before they reach Congress.

  3. Strictly limiting opportunities for members of Congress to second guess electors and electoral votes.  

  4. Clarifying the vice president’s ministerial role in the counting of electoral votes.  

A poll commissioned by Campaign Legal Center last year showed strong, bipartisan support among voters for updating the ECA. It also highlighted the serious concern held by a majority of voters (58%) that one party in Congress could try to overturn the results of an upcoming presidential election to put their own candidate in power.

Issues
Voting and Elections

Allen v. Milligan (Formerly Merrill v. Milligan)

At a Glance

Campaign Legal Center (CLC) is advocating to reinforce the role that Section 2 of the Voting Rights Act (VRA) plays in blocking redistricting plans that discriminatorily dilute the ability of voters of color to equally participate in the political process.

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Active
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Redistricting
About This Case/Action

In October 2022, the U.S. Supreme Court is scheduled to hear argument in a case involving Section 2 of the VRA — the strongest remaining federal statutory protection against racial discrimination in voting and redistricting.

Section 2 presents a limited but necessary constraint on jurisdictions, requiring that redistricting plans at any level — congressional, state legislative, county commission and more — cannot “abridge[]” minority voters’ equal “opportunity … to participate in the political process and to elect representatives of their choice.” For decades, courts have applied a demanding multi-part test to determine whether plaintiffs have established that a redistricting plan violates Section 2 under what is called a “vote dilution” claim.

In November 2021, multiple groups of voters and civil rights organizations filed lawsuits challenging Alabama’s newly enacted congressional redistricting plan. The groups argued that the new map violated the U.S. Constitution and Section 2 of the VRA because it packed Black Alabamians into a single district when an undiluted map would have created at least two districts. The trial court agreed that Alabama’s enacted congressional plan violated Section 2 of the VRA, and it did not decide the plaintiffs’ constitutional claims.

Alabama appealed to the U.S. Supreme Court. The state has attempted to argue that part of the long-settled evidentiary requirements that Section 2 plaintiffs must prove to establish a vote dilution violation makes the statute unconstitutional.

CLC filed an amicus brief in the U.S. Supreme Court, arguing that Alabama’s attacks against Section 2 are unfounded in part because Alabama has broad remedial flexibility to resolve a proven Section 2 violation. For example, CLC submitted numerous remedial options available to the State that will correct the vote dilution of Black Alabamians in the congressional map while satisfying Alabama’s other designated policy priorities even better than the enacted plan.

Supreme Court Should Reject Alabama Voting Maps That Silence Voters of Color

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Washington, D.C. – Today, Campaign Legal Center (CLC) filed a brief in Merrill v. Milligan, urging the Supreme Court to reject Alabama’s attempt to severely curtail Section 2 of the Voting Rights Act and prevent the state from using voting maps that dilute the voting power of Black Alabamians.

“To achieve a fair and inclusive democracy where every voice is heard and every vote counts equally, we can’t let politicians carve up communities of color to suppress their voting power,” said Paul Smith, senior vice president of Campaign Legal Center. “The Supreme Court’s unprecedented interference in the lower court’s decision invalidating Alabama’s map illustrates why Congress needs to act to protect voters of color.”

The issue before the Supreme Court is whether voting maps drawn by Alabama’s legislature violate the Voting Rights Act, a national law that protects communities of color against attacks on their freedom to vote and right to fair representation. Section 2 of the Voting Rights Act is a key enforcement mechanism for the law and bans racial discrimination in voting.

When the Supreme Court gutted part of the Voting Rights Act in the 2013 Shelby County v. Holder case, it opened the door for states – like Alabama – to pass discriminatory voting maps without having to clear them through the Department of Justice first.

The maps in question illegally pack some Black voters into a single district while dividing other Black voters into multiple districts to minimize their political influence. A district court temporarily blocked the map from going into effect, recognizing that it likely violated Section 2 of the Voting Rights Act. The Supreme Court then froze that temporary hold, forcing Black Alabamians to vote under maps that limit their voting power until the Supreme Court comes to a final decision.

CLC’s friend-of-the-court brief urges the Supreme Court to reject Alabama’s attempt to severely curtail Section 2 of the Voting Rights Act, one of the last remaining tools to challenge redistricting plans that dilute the electoral strength of minority voters.

CLC’s brief provides the Supreme Court with several alternative voting maps and remedial strategies that abide by the Constitution and do not dilute the voting power of Black Alabamians. As the district court ruled, Alabama’s enacted congressional map needlessly prevents cohesive Black voters from having the equal opportunity to elect candidates of their choice. CLC’s alternative maps prove that Alabama can fix this inequity while meeting its other stated policy priorities even better than the state’s enacted plan.

The Supreme Court must step in to make the promise of democracy real for all Alabamians by blocking the state from continuing to use voting maps that dilute the voting power of Black voters.

You can read the amicus brief in full here.

Learn more about Campaign Legal Center’s work to eliminate racial vote dilution here.  

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Redistricting

The Roberts Court Is a Threat to U.S. Democracy

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CLC Releases New Analysis Highlighting the Roberts Court’s Inconsistent Application of the Law in Democracy Cases

In a new analysis released today, The Supreme Court's Role in Undermining American Democracy, Campaign Legal Center discusses how the Roberts Court's record in cases affecting American democracy is consistently anti-democratic, reversing decades of work by prior Courts that sought to perfect and protect our democracy. The report also discusses how the justices, in order to consistently reach anti-democratic results, have selectively and inconsistently applied core judicial and interpretive principles like judicial restraint and deference, devotion to text and respect for precedent.

It is difficult to pinpoint any principled and legitimate through-line in these decisions, the report states.

“The U.S. Supreme Court under Chief Justice John Roberts has hit rock bottom,” said Paul Smith, senior vice president of Campaign Legal Center, who has argued 21 cases before the Court. “The Court’s track record on democracy is particularly woeful and concerning, given that a strong democracy is essential to a functioning America. The Roberts Court repeatedly tells voters that they can turn to the political process for relief from rulings that they may disagree with, but then in its rulings, increasingly makes it more difficult for voters — particularly voters of color — to participate in that process.”

The Court has always played a prominent role in democracy. The President’s Commission on the Court acknowledged the Court’s role in democracy and its perceived legitimacy as key factors in the recent debates surrounding court reform. In recent public statements, the justices themselves realize they are facing a legitimacy problem.

Only 25% of Americans have confidence in the U.S. Supreme Court, and the failure of any consistent legal rationale rightfully draws into question the Roberts Court’s legitimacy.

The report asks, “If the Roberts’ Court is not guided by some coherent judicial philosophy, are the justices simply aligning with the political party of the president who appointed them? Or is it that members of the current majority are averse to a participatory democracy in which every eligible citizen votes?"

The report concludes that the only potential remedy is a strong push back from Congress – the institution that the Framers intended to "check and balance” an aggressive and abusive Supreme Court.

At Campaign Legal Center, we are advancing democracy through law. Learn more about our work.

Issues
Voting and Elections
Redistricting
Campaign Finance

Challenging the FEC’s Dismissal of Campaign Finance Disclosure Violations by the Trump Campaign — CLC v. FEC (Trump Campaign Subvendor Reporting)

At a Glance

CLC has sued the FEC for its dismissal of CLC’s July 2020 administrative complaint alleging that then-President Trump’s 2020 presidential campaign committee (and an associated joint fundraising committee) violated federal campaign finance transparency requirements by routing hundreds of millions of dollars in campaign spending through intermediaries without disclosing the ultimate payees. 

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Active
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Issues
Campaign Finance
About This Case/Action

The Federal Election Campaign Act (FECA) requires federal political committees to disclose comprehensive details about their spending, including the name of each person that receives a campaign expenditure or other payment above $200 along with the amounts, dates and purposes of those payments. 

The FEC has made clear that this reporting requirement can apply even when a political committee routes the spending through another entity. In particular, a political committee must disclose information about the ultimate recipient of its spending if (1) the intermediary through which it routed that spending does not have an arm’s-length relationship with the committee or (2) the intermediary merely acted as a conduit for payments to the ultimate payee. 

In other words, campaigns can’t evade disclosure by funneling payments through intermediaries. 

In July 2020, CLC filed an administrative complaint with the FEC alleging that then-President Donald Trump’s 2020 presidential campaign committee and an associated fundraising committee had violated these reporting requirements. Drawing on media reports and public records, the complaint (which CLC supplemented in January 2021) alleged that the committees had funneled payments to vendors through two firms with close ties to the campaign without disclosing the details of the ultimate payments as required by FECA. 

One of the businesses, American Made Media Consultants (AMMC), was apparently created by Trump campaign officials. The other, Parscale Strategy, is the consulting firm of former Trump campaign manager Brad Parscale. CLC’s administrative complaint therefore alleged that Trump’s political committees did not have an arm’s-length relationship with either firm. 

In addition, CLC’s filings alleged that both AMMC and Parscale Strategy functioned as conduits through which the campaign paid vendors and staff that were working for the campaign. Parscale Strategy, for example, reportedly paid the salaries of several campaign officials, including Kimberly Guilfoyle and Lara Trump. 

Because both AMMC and Parscale Strategy had close ties to the two Trump committees and served merely as conduits for payments to campaign vendors, FECA required the committees to disclose the details of the ultimate payments to the vendors — not just the top-level payments to AMMC and Parscale Strategy. 

But rather than comply with this requirement, the committees reported only un-itemized bulk payments to AMMC and Parscale Strategy, hiding the details of the committees’ spending from public scrutiny. 

After reviewing CLC’s complaint, the FEC’s nonpartisan Office of General Counsel recommended that the agency investigate the matter. But investigating an administrative complaint requires the affirmative support of four of the FEC’s six Commissioners, and three Commissioners refused to even investigate CLC’s allegations.  

As CLC’s lawsuit explains, these Commissioners’ purported justifications for this decision do not stand up to legal scrutiny. CLC has therefore asked a court to intervene and invalidate the FEC’s unlawful dismissal of its complaint. 

The Trump campaign’s use of shell corporations deprived voters of key details about the campaign’s operations. Through this suit, CLC seeks to force the FEC to do its job and enforce voters’ right to know those details. 

What’s at Stake 

As the U.S. Supreme Court has explained, disclosure of campaign finance information serves a vital purpose: equipping voters with the information necessary to know “where political campaign money comes from and how it is spent” and thereby “to make informed decisions” in elections. By allowing the Trump committees to conceal their spending, the FEC has left voters in the dark about those committees’ activities and invited future campaigns to similarly evade transparency requirements. 

The FEC has a responsibility to ensure there is transparency and accountability in our elections by investigating and acting on potential FECA violations like those alleged in CLC’s administrative filings. 

Plaintiffs

Campaign Legal Center

Defendant

Federal Election Commission

Associated Cases & Actions

CLC v. FEC (Delay Suit—Trump Campaign Subvendor Reporting)
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