Top Democrats want to do much more than change this one, esoteric law governing how Congress certifies the winner of the presidential election. But ignoring this proposal could make them look as if they’re not working in good faith to strengthen democracy. So there’s a chance Congress will make changes to a centuries-old law to avoid another Jan. 6.
Here’s what’s going on.
What is the Electoral Count Act, and how did it come up on Jan. 6?
Congress has a very limited role in choosing the next president of the United States. The Constitution says states choose how to run their own elections.
But once states determine which candidate won, they send those results to Congress. Congress’s job is to simply count up each state’s electoral votes and officially declare the winner of the presidential election. After that, all that’s left is to inaugurate the next president. The Electoral Count Act is a 140-year-old law that governs what Congress should do in the case of any disputes about which candidate won in a state.
Congress was certifying those results on Jan. 6, 2021, when Trump supporters broke in and invaded the Capitol. Lawmakers returned that night amid broken glass and confirmed that Joe Biden had won enough electoral votes to be the next president.
Why are we talking about the Electoral Count Act now?
It was not something that Congress considered immediately after the attack, which is when it would have arguably made the most sense to address it.
But as the Jan. 6 anniversary nears, some conservative thinkers have suggested changing this law as a way to respond to the attacks.
Democrats are trying to push bigger electoral changes that expand voting rights in the United States — such as making Election Day a holiday, allowing everyone to vote by mail, banning partisan gerrymandering and getting “dark” money out of politics. They are considering weakening the filibuster to do it, an action that Republicans correctly view as a major threat to their ability to block Democratic legislation.
Right around the time Senate Majority Leader Charles E. Schumer (D-N.Y.) set up a date to vote to change the filibuster, the No. 2 Republican in the Senate, John Thune of South Dakota, said there’s “some interest” among Republicans in changing the Electoral Count Act in response to the Jan. 6 attacks. McConnell said he’s open to some changes. So did a host of other Senate Republicans, along with centrist Senate Democrats Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona, Politico reports.
What do Republicans want to do?
They’re not really sure yet. The Electoral Count Act was passed in 1887, and it’s an old and confusing law that tries to guide Congress in how it should handle any disputes in the states about who won. That actually happened in 1876.
But in 2020, there was no dispute in any state about how to count votes. Still, allies of President Donald Trump tried to twist the law to claim that the vice president, who presides over the certification of the next president, could just reject states’ electors. “I hope Mike Pence comes through for us,” Trump said at a rally days before Jan. 6. We learned in the book “Peril” that Pence considered it.
The farthest Trump allies got in 2020 was forcing Congress to debate whether the votes in Arizona were legitimate. That’s when rioters attacked the Capitol. After the riot, 139 House Republicans and eight senators voted not to certify the results in Pennsylvania, despite the fact that Pennsylvania itself certified its electoral votes for Biden.
One option conservative intellectuals have started proposing is to make it clear that the vice president can’t override the will of voters in states as she or he counts the votes. That’s gotten traction among Republican members of Congress.
Yuval Levin of the conservative American Enterprise Institute told Axios: “It should be pretty clear that it needs to be clarified, that a vice president shouldn’t have to be in the position of saying no to the president.”
Or they could just get rid of the Electoral Count Act entirely, which the Wall Street Journal’s editorial board proposes: “In these polarized times, both parties could use the law in the future as an excuse to attempt to overturn an election in the House and Senate. Congress shouldn’t have even the appearance of this power.”
Members of Congress in both parties going back to the election of George W. Bush in 2000 have used the Electoral Count Act to make objections to the winner.
What do Democrats think of this?
The top Senate Democrat is wary, to say the least. Addressing Congress’s role in certifying the presidential election was never on party leaders’ radar as they weight vote protections.
Democrats rightly point out that Congress has a perfunctory role in certifying the winner. Any notion otherwise is a misreading of the Electoral Count Act, said Adav Noti, a lawyer specializing in election law with the Campaign Legal Center.
“Congress is not supposed to be deciding who won a presidential election in a given state,” he said.
Schumer argues that focusing on the Electoral Count Act is no substitute for bigger voting rights measures to prevent bad actors from trying to steal an election in states. Republicans in key states have been pushing laws making it harder to vote, and Trump is propping up candidates who say the election was stolen to run future elections. “If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” Schumer said Tuesday, brushing off calls to change the Electoral Count Act instead of passing other legislation.
Based on what we know of Trump’s efforts to overturn his election loss, he seemed to focus on Congress only as an afterthought. Before Jan. 6, he brought Republican state legislators from Michigan to the White House. He spent an hour on the phone urging Georgia’s secretary of state to “find” just enough votes for him to win the state. He continues to cheer on Wisconsin legislators who are still trying to overturn his election loss in that state.
Only after all that failed did Trump turn to Congress and urged Pence to reject states’ electors.
But could there be some changes everyone agrees on?
Maybe. Democrats have been spending the past year talking about why they think democracy is in danger, and they risk appearing hypocritical if they outright reject Republican efforts that could help prevent another Jan. 6.
“My party has a lot of blame in the election space,” said former Republican secretary of state Trey Grayson, “but if Democrats blow this opportunity, then they deserve some blame, too.”
It’s possible that Democrats try to fold in some changes to the Electoral Count Act into a broader electoral bill to try to win over 10 Senate Republicans to vote for it. So far only one, Sen. Lisa Murkowski (R-Alaska), has expressed support for legislation on voting rights, and that’s not enough to overcome a Republican filibuster in the Senate. But it’s hard to see Republicans getting on board with other bigger changes to elections. A lot of what Democrats want to change (such as banning partisan gerrymandering) would benefit Democrats politically right now.
Noti endorses some changes to the Electoral Count Act, such as making clear to members of Congress the specific reasons they can raise questions about a state’s electoral votes and upping the requirement for how many members of Congress it takes to debate a state’s votes. In an interview with Politico, Thune endorsed those ideas.
But what seems more likely is that whether to change the Electoral Count Act, and whether it should replace broader election legislation, will be something new for Democrats and Republicans to fight over on the anniversary of Jan. 6.