Fearing a Repeat of Jan. 6, Congress Eyes Changes to Electoral Count Law

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Members of the peculiar House committee investigating the Capitol riot are among those arguing for an overhaul of a much than century-old statute enacted to code disputed elections.

Former President Donald J. Trump and his allies sought to exploit provisions successful  the Electoral Count Act of 1887 to cling to power.
Credit...Erin Schaff/The New York Times

Dec. 4, 2021, 5:00 a.m. ET

WASHINGTON — Members of the prime legislature committee investigating the Jan. 6 onslaught astatine the Capitol are pressing to overhaul the analyzable and little-known instrumentality that erstwhile President Donald J. Trump and his allies tried to usage to overturn the 2020 election, arguing that the ambiguity of the statute puts ideology itself astatine risk.

The propulsion to rewrite the Electoral Count Act of 1887 — enacted much than a period agone successful the aftermath of different bitterly disputed statesmanlike predetermination — has taken connected caller urgency successful caller weeks arsenic more details person emerged astir the grade of Mr. Trump’s plot to exploit its provisions to cling to power.

Mr. Trump and his allies, utilizing a warped mentation of the law, sought to transportation Vice President Mike Pence to propulsion retired morganatic results erstwhile Congress met successful a associated league connected Jan. 6 to behaviour its authoritative number of electoral votes

It was Mr. Pence’s refusal to bash truthful that led a mob of Mr. Trump’s supporters to chant “Hang Mike Pence,” arsenic they stormed the Capitol, delaying the proceedings arsenic lawmakers fled for their lives. Members of Congress and the vice president yet returned and completed the count, rejecting challenges made by loyalists to Mr. Trump and formalizing President Biden’s victory.

But had Mr. Pence done arsenic Mr. Trump wanted — oregon had capable members of Congress voted to prolong the challenges lodged by Mr. Trump’s supporters — the result could person been different.

“We cognize that we came precariously adjacent to a law crisis, due to the fact that of the disorder successful galore people’s minds that was evidently planted by the erstwhile president arsenic to what the Congress’s relation really was,” said Zach Wamp, a erstwhile Republican congressman from Tennessee who is simply a co-chairman of the Reformers Caucus astatine Issue One, a bipartisan radical that is pressing for changes to the predetermination process.

Republicans successful Congress person repeatedly blocked efforts by Democrats to change predetermination laws successful the aftermath of the 2020 crisis, and it is not wide whether a bid to revamp the Electoral Count Act volition fare immoderate better. But experts person described the instrumentality arsenic “almost unintelligible,” and an overhaul has the enactment of respective starring blimpish groups.

“There are a fewer of america connected the committee who are moving to place projected reforms that could gain enactment crossed the spectrum of wide to blimpish law scholars,” said Representative Adam B. Schiff, Democrat of California and a subordinate of the Jan. 6 committee. “We could precise good person a occupation successful a aboriginal predetermination that comes down to an mentation of a precise poorly written, ambiguous and confusing statute.”

Representative Liz Cheney, Republican of Wyoming and the vice chairwoman of the committee, said connected Thursday that “the 1887 Electoral Count Act is straight astatine issue” and that the sheet would urge changes to it.

The Constitution leaves it up to Congress to finalize the results of statesmanlike elections soon earlier Inauguration Day. Article II, Section 1 says, “The president of the Senate shall, successful the beingness of the Senate and House of Representatives, unfastened each the certificates, and the votes shall past beryllium counted.”


Credit... Erin Schaff/The New York Times

But the process is further detailed successful the Electoral Count Act, which says that arsenic lawmakers work done the electoral results of each authorities during a associated league of Congress, members of the House and Senate whitethorn taxable objections successful writing, which tin beryllium sustained if a bulk of some chambers approves. In the lawsuit that a authorities submitted aggregate slates to Congress, the governor’s certified electors would hold, the instrumentality says, unless a bulk successful some chambers voted to cull them.

The statute was written successful the aftermath of the disputed predetermination of 1876 betwixt Republican Rutherford B. Hayes and Democrat Samuel J. Tilden, and has dictated however Congress formalizes elections, mostly without incident, ever since.

But what unfolded connected Jan. 6 tested its limits.

Both of the objections by Mr. Trump’s allies — who sought to invalidate the electoral votes of Pennsylvania and Arizona — failed successful the House, though the immense bulk of Republicans supported them. Yet successful the months since, it has go wide those challenges were portion of a broader strategy. John Eastman, a lawyer advising Mr. Trump, drafted a program that included sending to Mr. Pence, who presided implicit the associated league successful his relation arsenic president of the Senate, a slate of Trump electors from 7 states won by Mr. Biden.

Mr. Eastman and different allies of Mr. Trump suggested pressuring the vice president to judge the alternate slate of Trump electors, throwing retired morganatic votes for Mr. Biden. Under specified a scenario, Mr. Eastman argued, a ballot of those states’ delegations successful the House, favoring Republicans, could support Mr. Trump successful power.

“The antiquated instrumentality governing the Electoral College ballot number is excessively vague and ripe for abuse, and it resulted successful baseless objections that delayed the antiauthoritarian process,” said Senator Amy Klobuchar, Democrat of Minnesota and the chairwoman of the Senate Rules Committee. “It’s clip to update this instrumentality to safeguard our democracy.”

Senator Chuck Schumer, Democrat of New York and the bulk leader, has indicated an openness to revising the statute, and a tiny radical of senators, including Senator Angus King, autarkic of Maine, has been moving connected imaginable solutions.

Understand the Claim of Executive Privilege successful the Jan. 6. Inquiry

Card 1 of 8

A cardinal contented yet untested. Donald Trump’s powerfulness arsenic erstwhile president to support accusation from his White House concealed has go a cardinal contented successful the House’s probe of the Jan. 6 Capitol riot. Amid an effort by Mr. Trump to support idiosyncratic records concealed and the indictment of Stephen K. Bannon for contempt of Congress, here’s a breakdown of enforcement privilege:

A bipartisan conjugation of authorities and section lawmakers is besides connected board, arsenic are immoderate organizations that survey predetermination issues, including Issue One and the National Task Force connected Election Crises.


Credit...Jason Andrew for The New York Times

In documents circulated connected Capitol Hill, the task unit — which calls the Electoral Count Act “severely flawed” — proposes respective wide changes. The suggestions see limiting the grounds for a lawmaker to entity to counting a state’s votes and clarifying that the vice president’s relation successful the process is simply ministerial, and frankincense lacking the authorization to unilaterally propulsion retired a state’s votes. It has besides recommended mounting clearer clip limits for states to take electors.

The effort could beryllium the absorption of Congress’s adjacent effort to alteration predetermination law, aft Republicans blocked authorities to found nationwide standards for ballot entree successful effect to voting restrictions being enacted astatine the authorities level, and a narrower measure to reconstruct parts of the landmark Voting Rights Act weakened by Supreme Court rulings.

Unlike those bills, determination is important enactment among Republicans extracurricular of Congress for overhauling the Electoral Count Act, though nary Republican successful Congress has publically endorsed a rewrite. Prominent blimpish writers specified arsenic Dan McLaughlin of The National Review, Walter Olson astatine the Cato Institute, Kevin R. Kosar of the American Enterprise Institute and Ramesh Ponnuru of Bloomberg person argued for changing the law.

Trey Grayson, a erstwhile Republican caput of authorities of Kentucky, said successful an interrogation that helium was acrophobic that, without changes to the law, determination would beryllium aboriginal attempts to exploit it by some parties.

“I interest that this is going to go routine, due to the fact that the inducement operation is there,” helium said. “It’s truly casual for idiosyncratic to play to the base, object, cognize they’re going to lose, but reap the rewards of appealing to the base. Those actions wounded our democracy.”

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