Fearing a repeat on January 6, Congress considers changes to the voter count law

WASHINGTON – Members of the congressional select committee investigating the Jan.6 attack on Capitol Hill are pushing to revise the complex and little-known law that former President Donald J. Trump and his allies tried to use to overturn the election of 2020, arguing that the ambiguity of the statute endangers democracy itself.

The drive to rewrite the 1887 Electoral Tally Act – enacted over a century ago following another bitterly contested presidential election – has taken on new urgency in recent weeks as more details have emerged on the extent of Mr. Trump’s plot to exploit its dispositions to cling to power.

Mr. Trump and his allies, using a distorted interpretation of the law, sought to persuade Vice President Mike Pence to reject legitimate results when Congress met in joint session on January 6 to conduct its official tally of electoral votes.

It was Mr. Pence’s refusal to do so that led to a crowd of Mr. Trump supporters chanting ‘Hang Mike Pence’ as they stormed the Capitol, delaying proceedings as lawmakers fled for their life. Members of Congress and the Vice President eventually returned and finished the tally, dismissing the challenges loyalists had given to Mr. Trump and formalizing President Biden’s victory.

But if Mr. Pence had done what Mr. Trump wanted – or if enough members of Congress had voted to support the challenges presented by Mr. Trump’s supporters – the outcome might have been different.

“We know that we have come precariously close to a constitutional crisis, due to the confusion in the minds of many that was clearly sown by the former president as to the real role of Congress,” said Zach Wamp, a former Republican congressman from Tennessee who is co-chair of the Reformers Caucus at Issue One, a bipartisan group pushing for changes to the electoral process.

Republicans in Congress have repeatedly blocked Democrats’ efforts to change electoral laws in the wake of the 2020 crisis, and it is not clear whether an attempt to revamp the voter count law will fare any better. But pundits have described the law as “almost unintelligible,” and an overhaul has the support of several prominent conservative groups.

“There are a few of us on the committee who are working to identify proposed reforms that could win support across the spectrum from liberal to conservative constitutional academics,” said Representative Adam B. Schiff, Democrat of California and Jan. 6 member. Committee. “We could very well have a problem in a future election that boils down to a very poorly drafted, ambiguous and confusing interpretation of a law.”

Rep. Liz Cheney, Republican from Wyoming and vice-chair of the committee, said Thursday that “the 1887 electoral count act is directly at issue” and that the panel would recommend changes.

The Constitution leaves it to Congress to finalize the results of the presidential elections shortly before inauguration day. Article II, Section 1 said: “The President of the Senate, in the presence of the Senate and the House of Representatives, will open all certificates, and the votes will then be counted.”

But the process is detailed in the Electoral Count Act, which says that while lawmakers read each state’s election results in a joint session of Congress, members of the House and Senate can submit objections in writing, which can be supported if a majority of both houses approve . In the event that a state submits multiple lists to Congress, the governor’s certified voters would be retained, by law, unless a majority in both houses votes to reject them.

The statute was drafted following the disputed 1876 election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden, and has dictated how Congress formalizes elections, mostly uneventful, since .

But what happened on January 6 tested its limits.

Both objections by Mr. Trump’s allies – who sought to invalidate the Pennsylvania and Arizona election votes – failed in the House, though the vast majority of Republicans backed them. Yet in the months that followed, it became clear that these challenges were part of a larger strategy. John Eastman, an attorney advising Mr. Trump, devised a plan that included sending Mr. Pence, who presided over the joint session as Senate speaker, a list of Trump voters from seven states won by Mr. Biden.

Mr. Eastman and other allies of Mr. Trump have suggested pressuring the vice president to accept Trump’s alternate voters list, rejecting legitimate votes for Mr. Biden. In such a scenario, Mr. Eastman argued, a vote by delegations from those states in the House, in favor of the Republicans, could keep Mr. Trump in power. (Mr. Eastman informed the committee this week that he plans to invoke his Fifth Amendment right against self-incrimination to avoid answering committee questions.)

“The archaic law governing the Electoral College vote count is too vague and ripe for abuse, and it has given rise to baseless objections that have delayed the democratic process,” said Senator Amy Klobuchar, Democrat of Minnesota and president of the Senate Rules Committee. “It is time to update this law to safeguard our democracy.

New York Democrat and Majority Leader Senator Chuck Schumer said he was open to reviewing the law, and a small group of senators, including Independent Senator Angus King from Maine, worked on potential solutions .

A bipartisan coalition of state and local lawmakers is also on board, as are some organizations that study electoral issues, including the Number One and the National Electoral Crises Task Force.

In documents circulated on Capitol Hill, the task force – which calls the voter count law “gravely flawed” – is proposing several big changes. Suggestions include limiting the grounds for a legislator to object to a state’s vote count and clarifying that the vice president’s role in the process is merely ministerial, and therefore does not have the power to dismiss. unilaterally the votes of a state. He also recommended setting clearer deadlines for states to choose their voters.

This effort could be the focus of Congress’ next attempt to change electoral law, after Republicans blocked legislation to establish national standards for access to ballots in response to voting restrictions enacted at the election level. state, and a narrower measure to restore parts of historic voting rights. Law weakened by Supreme Court rulings.

Unlike these bills, there is significant support among Republicans outside of Congress for the overhaul of the voter count law, although few Republicans in Congress have publicly endorsed a rewrite. Prominent conservative writers such as Dan McLaughlin of the National Review, Walter Olson at the Cato Institute, Kevin R. Kosar from the American Enterprise Institute and Ramesh Ponnuru from Bloomberg argued for changing the law.

Trey Grayson, a former Republican Secretary of State for Kentucky, said in an interview that he was concerned that without a change in the law there would be future attempts to exploit it by both sides.

“I’m afraid it will become routine, because the incentive structure is there,” he said. “It’s really easy for someone to play at the base, to object, to know they are going to lose, but to reap the rewards of appealing at the base. These actions harm our democracy.

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