Path was uncertain if Pence objected to Biden’s win
WASHINGTON — In the weeks leading up to Jan. 6, 2021, an elite group of House Democrats gathered to contemplate a question that their predecessors could have hardly imagined: What would they do if the vice president tried to overturn a free and fair election?
The group assembled by House Speaker Nancy Pelosi, D-Calif., included some of the most agile legal minds in the House — California Reps. Adam Schiff and Zoe Lofgren, Maryland Rep. Jamie Raskin and Colorado Rep. Joe Neguse. They spent weeks studying the rules for the Jan. 6 certification, gaming out what they would do if Vice President Mike Pence took the unprecedented step of trying to halt Joe Biden’s victory in the Electoral College.
They never came up with a perfect answer.
In the end, the planning was merely a precaution. Pence did not bend to President Donald Trump’s extraordinary pressure to intervene and presided over the count in line with his ceremonial role. He announced the certification of Biden’s victory before dawn, hours after a mob of Trump’s supporters violently ransacked the building.
Still, the idea that the Electoral College process could have been manipulated added a grave new dimension to the Capitol insurrection, heightening the danger the nation faced as Trump pressured lawmakers and election officials around the country to change the results.
Democrats, and some Republicans, warn that peril is only growing as Trump and his allies wage a nationwide campaign to seize hold of the machinery of elections.
If Pence had tried to overturn the election, “there really weren’t good, clear answers because there was no precedent,” said Schiff, who believes it is still an open question as to how Congress could prevent an illegal attempt to block a legitimate election in the future. That is “why our two-century-old experiment in democracy is not assured,” he says.
One possible remedy is an update to the Electoral Count Act of 1877 — which, along with the Constitution’s 12th Amendment — governs the process. Changes to the law could clarify that the vice president’s role is strictly ceremonial or make it harder for lawmakers to challenge the electors. The bipartisan House committee investigating the insurrection is working on a proposal.
But Democrats also acknowledge the limitations of their plan. While Senate Minority Leader Mitch McConnell, R-Ky., said this week he’s open to revisiting the law, and there are discussions underway in both chambers, passage is far from guaranteed in a Congress where a majority of Republicans remain aligned with Trump. Future Congresses could undo any changes, and bad actors could still try and break the rules.
The Electoral Count Act is poorly written and vague, Lofgren said. “And because it’s vague, it is vulnerable to misuse.”
“The truth is, if somebody wants to overthrow the government, pull in the military and take over the Congress, reforming the Electoral Count Act is not going to stop it,” Lofgren said. “But we need to do our best to shore up the law and protect our country’s democratic republic.”