Surprise: Both Parties Are Joining Hands to Prevent Another Jan. 6-Style Coup

The proposed Electoral Count Reform Act will slap down the legal mischief Trump inspired

From left to right: Sen. Susan Collins (R), Sen. Joe Manchin (D), Rep. Zoe Lofgren (D), Rep. Liz Cheney (R). Source: Wikimedia Commons.

In an age of pessimism about the future of democracy in the United States, there haven’t been many opportunities to cheer. The reactions to the events of Jan. 6 seem to have become hopelessly polarized along partisan lines, from the subsequent impeachment trial of then-President Donald Trump to the Jan. 6 Committee hearings. On such issues as voting rules, election administration and gerrymandering, the two parties appear mired in trench warfare and a spiral of tit-for-tat escalation.

But underneath the partisan rancor, Congress has managed to come together on the most important response to the 2020 election crisis: reforming the Electoral Count Act, the obscure 19th century law at the heart of the attempts to overturn the 2020 presidential election during the joint session of Congress on Jan. 6, 2021. While other election-related issues can reflect both good-faith disagreements and normal partisan wrangling, getting ECA reform right is about a fundamental commitment to the Constitution and the rule of law.

A Crisis Waiting To Happen

Under the constitutional rules governing the Electoral College, the basic process for electing the president occurs in two stages. The first is the familiar one: Each state holds a popular election, and state and local agencies tally the ballots cast for president and vice president to determine which candidates received the most votes. These votes don’t immediately determine who will be president; instead, they determine which individuals the state will appoint as its electors for the second stage of voting.

In the second stage, each state’s electors gather and cast the state’s votes—equal to the state’s number of U.S. representatives and senators—for the president and vice president. These votes are certified by the electors in each state and sent to the president of the U.S. Senate (the vice president), so that the electors’ votes can be tallied in front of both chambers of the U.S. Congress to determine the winner of the Electoral College and thus who will serve as president and vice president during the coming presidential term. Unlike the election’s first stage, which is partly governed by state law, this second election is governed by provisions of the U.S. Constitution and procedures found in the federal Electoral Count Act.

Unfortunately, the ECA has long been a constitutional crisis waiting to happen. Written mostly in 1887, its vague, contradictory provisions open the door for unconstitutional arguments that Congress has essentially unlimited power to throw out the duly cast votes of the Electoral College. In fact, on Jan. 6, 2021, partisans of then-President Donald Trump, under the guidance of renegade legal scholar John Eastman, used the ECA’s provisions to attack both the first and the second stages of the election process.

The attack on the second stage gained the most attention. The ECA requires only two members of Congress—one representative and one senator—to object to accepting a state’s electoral votes to instigate a congressional debate over the question. On Jan. 6, a group of Republican representatives and senators led by Sen. Ted Cruz of Texas and Rep. Paul Gosar of Arizona objected to the counting of Arizona’s electoral votes on grounds that questions had been raised about the state’s election procedures. Though it was clear Sen. Cruz and Rep. Gosar wouldn’t receive the support of a majority of both chambers of Congress, their approach was meant to give political cover to then-Vice President Mike Pence, presiding over the assembly as president of the Senate, to invalidate those states’ votes based on a willful misreading of his powers under the ECA.

Pence, to his credit, refused to play along, and the attack on the Capitol essentially put an end to other challenges. But this attempt to undermine the constitutional provisions of the Electoral College highlighted three weaknesses: the ECA’s low threshold for objections; the ECA’s failure to explicitly limit the vice president’s role in the process; and the ECA’s failure to clarify that Congress’ constitutional power to question election results applies only to the second stage of the election, over which it has jurisdiction—not the first stage, which is under the jurisdiction of state governments and state and federal courts.

The other attack on the Electoral College was arguably just as troubling. It involved a handful of Republicans using the ECA’s vague language to fraudulently appoint “alternate” electors for their states, thereby interfering with the election’s first stage as well. These fake electors were supposedly empowered to cast their states’ votes for then-President Trump, despite Joe Biden’s having been declared the state’s winner. These pretend electors were always a sham, but they, too, were meant to muddy the waters and make it easier for Vice President Pence to intervene on Jan. 6. They also highlighted another weakness of the ECA: its vague reference to a state’s ability to make a late appointment of electors if a state “has failed to make a choice on the [election] day prescribed by law.” This provision, intended to deal with unusual elections delays, was being cynically deployed based on lingering state election controversies.

To be clear, abuse of the ECA didn’t start in the 2020 election. The act’s provisions were mostly unexplored for well over a century until congressional Democrats began using the process for grandstanding objections to the 2000, 2004 and 2016 elections. While these were much more tepid protests and attracted much less support than the 2020 objections, they helped pave the way for the Republicans’ escalation.

A Surprisingly Admirable Response in Congress

The Democrats’ previous attempts to exploit weaknesses in the ECA no doubt bolstered Republican support for ECA reform. In September, the Senate Rules Committee advanced the Electoral Count Reform Act, the flagship product of the bipartisan working group led by Sens. Susan Collins and Joe Manchin. The bill was voted to the Senate floor on a resounding 14-1 bipartisan vote, including a crucial yes vote from Senate Minority Leader Mitch McConnell, whose support makes it politically easier for other Republicans to back the reform. Only one Republican, Sen. Ted Cruz, opposed the measure, and his arguments, which were confused and unpersuasive, included the idea that Congress could overrule the decisions of state elections officials—a contradiction of his purported conservative, federalist principles.

Under the Senate bill, a number of important changes are made to make the ECA clearer, harder to exploit and more closely aligned with sound interpretations of the Constitution. Federal courts are provided with a streamlined procedure and clearer statutory basis to decide presidential election disputes, including how to handle a rogue governor or secretary of state who refuses to certify the rightful winner of their state’s electoral votes, thereby undermining the state’s appointment of electors. In addition, the role of Congress is much more explicitly curtailed, reflecting the constitutional principle that it is not within Congress’ power to sit in judgment of how each state conducted its popular election. Most crucially, the number of congressional cosponsors needed to raise objections and launch full-scale debate during the electoral count in Congress is raised from the current threshold of just one member of each chamber to one-fifth of each chamber.

The reformed law would also repudiate one of the most dangerous claims made by John Eastman and other Trump allies in 2020: the idea that state legislatures have any power to overturn their state’s results after the fact, such as by convening in December to pick a slate of Trump electors even after the state’s voters chose Biden in November. Instead, the bill would clearly state the proper constitutional interpretation: that a state legislature’s power over the “manner” of choosing electors expires once that method is implemented on Election Day.

On top of these substantive provisions, the law also provides a much-needed reorganization of the rules of congressional procedure contained in the ECA. Gone are the run-on sentences that ramble on for hundreds of words and are nearly impossible to parse. Though it might sound superficial, simply inserting more punctuation, paragraph breaks and clearer language goes a long way to clean up ambiguities that could be exploited in the future. Among these rules changes is an unambiguous declaration that the vice president has no discretionary power over the proceedings, shutting down the argument that Mike Pence could have simply refused to count votes for Biden.

On the other side of the Capitol, the House has already passed its own version of ECA reform: the Presidential Election Reform Act, sponsored by Reps. Zoe Lofgren and Liz Cheney. This bill attracted substantially less Republican support, with just nine GOP yes votes, and in the Senate, it was rejected as a “nonstarter” by McConnell.

But even the manner of the House Republicans’ rebuff of the bill revealed how much agreement there was on the need for substantive reform of the ECA. Republicans, led by Rep. Rodney Davis, mostly focused on procedural objections to the bill. These were not entirely without merit: The bill had been rushed to the floor just three days after being introduced, and it had not been produced with GOP input aside from Cheney’s. The bill also contained some provisions beyond the scope of the ECA as such, addressing voting rights issues and creating new avenues for litigation beyond what most Republicans were willing to support.

While rejecting that particular version of ECA reform, House Republicans who spoke in opposition were insistent on leaving the door open to the Senate’s more bipartisan version. None spoke in defense of the constitutionally defective objections raised on Jan. 6 during the 2020 electoral count. At one point, Rep. Marjorie Taylor Greene, one of the most ardent supporters of overturning the 2020 election, was visible behind Davis, apparently waiting for a turn to speak. Davis, who was controlling the GOP time as the ranking member on the Committee on House Administration, did not cede the floor to her. It was a subtle but telling example of the adults in the room setting the agenda and keeping wild “big lie” supporters out of the discussion.

The two bills diverge in some respects, but the broad outlines are very similar, and both would represent a massive improvement over the status quo. On the Senate side, some amendments were made in committee bringing ECRA closer to the House version. In a recent letter to their Senate colleagues, Reps. Lofgren and Cheney urged further technical improvements to the final bill, in particular emphasizing their concern that the grounds for congressional objections during the counting of state electoral votes have not been limited sufficiently. The House members would like an enumerated list of valid grounds for raising objections, or at least a tighter categorical definition.

While that disagreement is still pending, the Senate Rules Committee has already addressed an objection from the House concerning a provision authorizing states to hold an extended election in cases of natural disasters or similar emergencies. Some worried that this authorization was too broad and might be abused. In response, the Senate qualified the rule by requiring that it be invoked only under “force majeure” circumstances. This is a well-settled legal term of art for conditions of physical force truly outside of the state’s control, such as a hurricane or terrorist attack; it would not extend to legal or administrative disputes.

Other differences are fairly minor. The Lofgren-Cheney bill would set a higher threshold of one-third of each chamber to raise objections, instead of the one-fifth necessary under the Collins-Manchin bill. But even that lower threshold is still a fairly high bar. None of the objections during the Jan. 6, 2021, count had the support of the 20 senators that would be required if the rule becomes one-fifth of both houses.

The process of reforming the ECA has so far been a remarkably admirable exercise in good faith from members of both parties and in both chambers. The result is that ECRA is now on a clear path to being passed by the end of the year, likely by being included in Congress’ annual omnibus spending package.

Stepping Back From the Brink

Both parties, then, are taking a much-needed step back from the brink. By raising the threshold on the number of sponsors needed for an objection to a state’s electoral votes, ECRA will shut down all but the most serious and meritorious objections. More broadly, it pushes most potential election disputes into the courts, where they belong, and clearly removes disputes over the states’ popular elections from the purview of Congress during the counting of electoral votes.

In addition to its overdue technical improvements to the procedures for certifying the results of a presidential election, ECRA represents a deeper political commitment to renouncing this dangerous, lawless business of claiming Congress can change the results of a presidential election. For all the brinkmanship and escalations of runaway polarization, it appears there are some lines Congress will not cross. That includes respecting the fact that the nation’s highest officeholder is chosen by a process spelled out in the Constitution, subject to the rule of law, in which Congress’ role is cursory and primarily ceremonial.

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