A year after the attack on the U.S. Capitol, Congress has passed precisely zero legislation to prevent it from happening again. The Jan. 6 congressional committee, which will devote one of its upcoming hearings to discussing the Trump campaign’s plot to submit slates of fake electors, may change that by recommending new limits to Congress’s and the vice president’s roles in deciding the presidential winner.
Reforming the Electoral Count Act could have bipartisan support; Republican leaders over the past year have indicated that they’re open to it.
“It obviously has some flaws, and it is, I think, worth discussing,” Senate Minority Leader Mitch McConnell (R-Ky.) said last January, about proposed legislation.
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 — with the vice president presiding in a ceremonial capacity — and officially declare the winner of the presidential election. After that, all that’s left is to inaugurate the next president.
How the Electoral Count Act works
and how the process unfolded
in the 2020 election
Voters cast their ballots.
Election Day
The electoral college meets to certify states’ votes.
Later, States send electoral votes to Congress
for certification.
Dec. 14.
Congress convenes to certify each state’s
electoral votes. The vice president oversees
this as the president of the Senate.
Jan. 6.
No objection.
Two lawmakers, one from
each chamber, can object
to a state’s certification.
They don’t have to say why.
Jan. 6, around 12:30 p.m.:
Republicans objected to
Arizona’s results. They
would later object to
Pennsylvania’s as well.
Trump lost both states.
Congress votes on the
objection. The challenge
can be voted down by
a majority.
Jan. 6, around 1 p.m.:
Trump supporters violently
attacked the Capitol,
stopping the count for
hours.
Congress votes down
the challenge.
The vice president
does not have the
power to reject the
votes on their own.
Congress accepts the
challenge. The process
would involve the state’s
governor and the House
and Senate. Each step
opens up the possibility of
further legal challenges.
Congress certifies the winner
of the presidential election.
Jan. 7, 3 a.m.
The vice president announces
the winner of the election.
Jan. 7, around 3:30 a.m.
How the Electoral Count Act works
and how the process unfolded in the
2020 election
Voters cast their ballots.
Election Day
The electoral college meets to certify states’ votes.
Later, States send electoral votes to Congress
for certification.
Dec. 14.
Congress convenes to certify each state’s electoral votes.
The vice president oversees this as the president
of the Senate.
Jan. 6.
Two lawmakers, one from
each chamber, can object
to a state’s certification.
They don’t have to say why.
No objection.
Jan. 6, around 12:30 p.m.:
Republicans objected to
Arizona’s results. They
would later object to
Pennsylvania’s as well.
Trump lost both states.
Congress votes on the
objection. The challenge
can be voted down by
a majority.
Jan. 6, around 1 p.m.:
Trump supporters violently
attacked the Capitol,
stopping the count for
hours.
Congress votes
down the challenge.
The vice president
does not have the
power to reject the
votes on their own.
Congress accepts the
challenge. The process
would involve the state’s
governor and the House
and Senate. Each step
opens up the possibility of
further legal challenges.
Congress certifies the winner
of the presidential election.
Jan. 7, 3 a.m.
The vice president announces
the winner of the election.
Jan. 7, around 3:30 a.m.
How the Electoral Count Act works
and how the process unfolded in the 2020 election
How the Electoral Count Act works
and how the process unfolded in the
2020 election
Election
Day
Voters cast their ballots.
Dec. 14.
The electoral college meets to certify states’ votes.
Later, states send electoral votes to Congress for
certification.
Congress convenes to certify each state’s electoral votes
The vice president oversees this as the president
of the Senate.
Jan. 6.
Jan. 6.
Around 12:30 p.m.
One lawmaker from each chamber
is required to object to a state’s
certification. They don’t have to say why.
No objection.
Republicans objected to Arizona’s
results. They would later object to
Pennsylvania’s as well. Trump lost
both states.
Jan. 6.
Around 1 p.m.
Congress votes on the objection.
The challenge can be voted down by
a majority.
Trump supporters violently attacked
the Capitol, stopping the count for
hours.
Jan. 7.
3 a.m.
Congress accepts the challenge.
Next steps would involve the state’s
governor and the House and
Senate. Each step opens up the
possibility of further legal challenges.
Congress votes
down the challenge.
The vice president
does not have the
power to reject the
votes on their own.
Congress certifies the winner
of the presidential election.
Jan. 7.
Around
3:30 a.m.
The vice president announces
the winner of the election.
The Electoral Count Act is a 140-year-old law that governs what Congress and the vice president 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 U.S. Capitol. Lawmakers and Vice President Mike Pence 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.
Democrats tried and failed 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.
Now that Democrats’ federal voting rights legislation has been shelved indefinitely, a bipartisan group of senators started meeting earlier this year to talk about tightening the Electoral Count Act instead, a more narrow reform that deals with the very end of the election process after all states have certified their results.
Trump arguably keeps provoking them to consider it. He issued a statement in January opposing reforms to the law, where he acknowledged that he wanted to use it to change the results of a legitimate election: “[H]ow come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?”
What do lawmakers want to do?
They’re trying to figure that out. The Electoral Count Act was passed in 1887, and it’s an old and confusing law that guides Congress in how it should handle any disputes in the states about who won. That actually happened in 1876.
In 2020, there was no dispute in any state about how to count votes. Still, Trump allies 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.
In a recent Jan. 6 congressional hearing, Pence’s advisers and aides testified that Trump privately pressured the vice president to overturn states’ election results. If it had worked, testified retired federal judge J. Michael Luttig, who advised Pence during this time, it “would have been the first constitutional crisis since the founding of the Republic.”
Pence ultimately determined the Constitution gave him no power to do such a thing.
The furthest Trump allies got in 2020 was forcing Congress to debate whether the votes in Arizona were legitimate. That’s when rioters attacked the Capitol.
One option considered by Sen. Susan Collins (R-Maine) and a bipartisan group she formed earlier this year: making it crystal clear that the vice president can’t override the will of voters in states as she or he counts the votes.
Collins said they are also considering raising the bar for how many members of Congress it takes to challenge election results. Right now it’s two, one from each chamber. (Though they might have to raise that pretty high. After the riot, 139 House Republicans and eight senators voted not to certify the results in Pennsylvania, despite the fact there were no irregularities in Pennsylvania’s election.)
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, but Republicans took it further than before in 2020 by objecting to multiple states’ results, even after the attack on the Capitol.
This has been updated with the latest news.