A year after the attack on the U.S. Capitol, there has been precisely zero legislation in Congress to prevent it from happening again.
But recently, some Republicans have proposed getting Congress out of the role of elections entirely by changing or getting rid of the Electoral Count Act, a sort of olive branch (or trap, depending on how you look at it) for Democrats who have failed to pass election legislation. “It obviously has some flaws, and it is, I think, worth discussing,” Senate Minority Leader Mitch McConnell, R-Ky., has said.
This comes as former president Donald Trump continues his pressure campaign on overturning his election loss.
Might Democrats be willing to consider it, now that their effort to pass broader changes to how elections are run has failed?
Here’s what’s going on.
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 ministerial capacity – 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 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 returned that night amid broken glass and confirmed that Joe Biden had won enough electoral votes to be the next president.
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. They tried to weaken the filibuster to do it, but Democratic Sens. Kyrsten Sinema, Ariz., and Joe Manchin III, W.Va., joined with Republicans to block them.
Now that Democrats’ federal voting rights legislation is shelved indefinitely, a bipartisan group of senators is meeting to talk about tightening the Electoral Count Act instead.
Trump arguably keeps provoking them to consider it. He recently issued a statement 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?””
They’re trying to figure that out. 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.
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. We learned in the book “Peril” that Pence considered it.
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 Sen. Susan Collins, R-Maine, and her bipartisan group is considering is making it crystal clear that the vice president can’t override the will of voters in states as she or he counts the votes. That’s the change that Trump seems to be vociferously opposing. “[W]hat they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!” he said in a statement.
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.)
“This is not a small matter,” she said on ABC on Sunday. ” … We saw, on January 6th of 2021, how ambiguities in the law were exploited. We need to prevent that from happening again.”
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.
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 weigh 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.
Senate Majority Leader Chuck Schumer, D-N.Y., 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 has said, 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 and the Electoral Count Act only as an afterthought. Before Jan. 6, he brought Republican state lawmakers 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 lawmakers who are still trying to overturn his election loss in that state.
Only after all that failed did Trump turn to Congress and urge Pence to reject states’ electors. And now, as he considers running for president again, he seems very focused on keeping the law the way it is.
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 Kentucky secretary of state Trey Grayson, R, “but if Democrats blow this opportunity, then they deserve some blame, too.”
But it’s also possible that whether to change the Electoral Count Act will be something new for Democrats and Republicans to fight over in the election space.