In wake of riot, Congress eyes change to electoral law
WASHINGTON — Members of the select congressional committee investigating the Jan. 6 attack at the Capitol are pressing to overhaul the complex and little-known law that former President Donald Trump and his allies tried to use to overturn the 2020 election, arguing that the ambiguity of the statute puts democracy at risk.
The push to rewrite the Electoral Count Act of 1887 has taken on new urgency in recent weeks as more details have emerged about the extent of Trump’s plot to exploit its provisions to cling to power.
Trump and his allies, using a warped interpretation of the law, sought to persuade Vice President Mike Pence to throw out legitimate results when Congress met in a joint session Jan. 6 to conduct its official count of electoral votes. Pence and members of Congress ultimately completed the count, rejecting challenges made by loyalists to Trump and formalizing President Joe Biden’s victory.
Had Pence done as Trump wanted — or had enough members of Congress voted to sustain the challenges lodged by Trump’s supporters — the outcome could have been different.
“We know that we came precariously close to a constitutional crisis, because of the confusion in many people’s minds that was obviously planted by the former president as to what the Congress’ role actually was,” said Zach Wamp, a former Republican congressman from Tennessee who is a co-chair of the Reformers Caucus at Issue One, a bipartisan group that is pressing for changes to the election process.
Republicans in Congress
have repeatedly blocked efforts by Democrats to alter election laws in the wake of the 2020 crisis, and it is not clear whether a bid to revamp the Electoral Count Act will fare any better. But experts have described the law as “almost unintelligible,” and an overhaul has the support of several leading conservative groups.
“There are a few of us on the committee who are working to identify proposed reforms that could earn support across the spectrum of liberal to conservative constitutional scholars,” said Rep. Adam Schiff, D-Calif., a member of the Jan. 6 committee. “We could very well have a problem in a future election that comes down to an interpretation of a very poorly written, ambiguous and confusing statute.”
The Constitution leaves it up to Congress to finalize the results of presidential elections shortly before Inauguration Day. Article II, Section 1 says, “The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.”
The process is further detailed in the Electoral Count Act, which says that as lawmakers read through
the electoral results of each state during a joint session of Congress, members of the House and Senate may submit objections in writing, which can be sustained if a majority of both chambers approves. Should a state submit multiple slates to Congress, the governor’s certified electors would hold, the law says, unless a majority in both chambers voted to reject them.
The statute, written in the aftermath of the disputed election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden, has dictated how Congress formalizes elections.
But what unfolded Jan. 6 tested its limits.
Both of the objections by Trump’s allies — who sought to invalidate the electoral votes of Pennsylvania and Arizona — failed in the House, although the vast majority of Republicans supported them. In the months since, it has become clear those challenges were part of a broader strategy. John Eastman, a lawyer advising Trump, drafted a plan that included sending to Pence, who presided over the joint session in his role as president of the Senate, a slate of Trump electors from seven states won by Biden.