Given the ongoing fallout from the Capitol riot on January 6, 2021, and the fast-approaching 2024 election, lawmakers are scrambling to prevent another president from trying to manipulate Congress’s certification process to overturn election results.
A bipartisan group of 16 senators on Wednesday unveiled new legislation aimed at clearing up the vague language in the Electoral Count Act, which former President Donald Trump tried to exploit in an attempt to invalidate the 2020 election outcome. The ECA, first passed in 1887, lays out Congress’s routine role in counting the electoral votes that candidates receive from each state. The new bill is aimed at updating the legislation so it makes explicit the limitations of the vice president’s role, and makes it harder for lawmakers to challenge different states’ results.
The push for this legislation comes as Republican candidates across the country continue to question the 2020 election results and make their position on it central to their midterm campaigns. Senators co-sponsoring the bill have emphasized the importance of passing these changes ahead of the next presidential election, when Trump or another candidate may try to mobilize supporters to target Congress again.
Currently, the legislation has the support of nine Republican senators: Sens. Susan Collins (R-ME), Rob Portman (R-OH), Lisa Murkowski (R-AK), Mitt Romney (R-UT), Thom Tillis (R-NC), Shelley Moore Capito (R-WV), Todd Young (R-IN), Ben Sasse (R-NE), and Lindsey Graham (R-SC). It’s not yet clear when a vote on it will take place, and if one more Republican will sign on to give the bill the filibuster-proof majority it needs to pass.
The bills’ sponsors stressed the urgency of approving the legislation soon, as lies about the 2020 election continue to proliferate. “There is just a very well-developed and well-organized movement, where Trump supporters are learning from his inability to overturn the election in 2020, and they are galvanizing themselves to leave nothing to chance in 2024,” Sen. Chris Murphy (D-CT), one of the Democratic sponsors, said Thursday in a floor speech.
How did Trump try to abuse the ECA on January 6, 2021?
The ECA — which details Congress’s role after a presidential election — was central to Trump’s efforts to nullify the 2020 election results.
As it works now, Congress receives the presidential election results from each state and has the job of counting and certifying, or finalizing, these results. To do so, Congress gathers the January after the presidential election to go through each state’s results. As they’re read, lawmakers can contest them as long as one House member and one senator agree to register their objections.
If an objection is made, the House and Senate will then each debate the objection and vote on it; for the results to actually be contested, a majority of members in both bodies need to agree to it. Otherwise the objection is dispensed with and the results are counted as is.
This provision in the law was particularly relevant last year.
In January 2021, House Republicans raised objections about the results in six states, though only their objections toward the Arizona and Pennsylvania results had Senate support. Neither of those objections received a majority of support in either chamber.
In the past, lawmakers have raised objections regarding the Georgia results in Trump’s election in 2016 and the Ohio results in former President George W. Bush’s election in 2004. The objections to the 2020 presidential results, however, were unique in the number of states that were contested, and the number of Republicans who supported the effort. In the end, 147 House Republicans maintained their objections to the outcome in Pennsylvania or Arizona.
During the certification process, the vice president also has what’s typically a ceremonial role, detailed in the ECA. Their job is to open each state’s electoral results, present them to Congress, and preside over the joint session. Once the outcomes in each state are tallied, the vice president will also announce which candidate received a majority of the electoral votes to win the presidency.
In 2021, however, Trump urged Vice President Mike Pence to consider overturning the results by rejecting the outcomes in several states. As the House January 6 committee has explained, attorney John Eastman, a member of Trump’s legal team, laid out a plan for how Pence could discard the electoral outcomes in seven states and declare Trump the winner. Pence, however, concluded there was no legal basis for him to do so and refused to follow through on the plan.
As a Yahoo News report notes, another current shortcoming in the ECA is the leeway it gives states regarding the slates of electors they could send to Congress, potentially giving states the ability to overturn results if their legislatures decide to do so:
At the state level, the ECA gives governors enormous power over the slate of electors sent to the Electoral College. There is room under the law for a state legislature to try to throw out the popular vote in its state by sending a competing slate of electors to Congress. If the governor signs off on that slate, then the law would dictate that those electors are the ones that are counted.
Matthew Seligman, a fellow at the Center for Private Law at Yale Law School, has said that the ECA could be updated to more plainly state when electors can be chosen.
In addition to pressuring his vice president to disregard the election’s outcome, Trump’s push to contest the 2020 results, coupled with GOP lawmakers’ assertions that there was something amiss about those results, spurred thousands of his supporters to storm the Capitol as the certification process was taking place on January 6, 2021.
What the legislation would do
A central goal of the legislation is to make it more difficult for any future candidates to weaponize Congress’s vote certification process.
The first section is the Electoral Count Reform Act, which would do the following:
- Specify that the vice president’s role is purely ceremonial: Although Pence refused to follow Trump’s plan, the bill would ensure that no future vice president would have any leeway to try to execute a similar proposal. It clarifies that the vice president “does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”
- Increase the number of lawmakers required to register objections to a state’s results: Currently, just one senator and one representative need to file an objection for it to receive a vote in both chambers. The legislation would increase this threshold to one-fifth of members in both the House and the Senate, respectively. This is intended to ensure that any objections are backed by a broader swath of lawmakers.
- Designate the governor as the only person who can submit a state’s electors: To prevent states from trying to submit competing slates of electors, the legislation notes the governor of a state is the only person able to designate the final results sent to Congress. This is intended to address a scenario in which different government officials try to push different slates: if a state’s secretary of state attempted to submit a different outcome than the governor, for example. In 2020, some Republican leaders in different states sought to offer up alternate slates of electors that declared Trump the winner.
- Clarifies law to ensure that state lawmakers can’t overturn a state’s popular vote: Because of how ambiguous the language is in the current law, Trump had previously argued that it gives state legislatures the room to override a state’s popular vote if they supported a different candidate. The bill tries to close a loophole that could be interpreted as giving them that power.
The second section is the Presidential Transition Improvement Act, which would guarantee transition funding to both candidates in the event that there’s uncertainty about the election.
After the 2020 election, there were members of different federal agencies who declined to provide Biden and his new administration with transition resources because of the unfounded claims Trump had raised about the election outcome. This legislation would require federal agencies to provide resources to both candidates in the event that there were questions about who won an election.
A bipartisan group of lawmakers, with slightly fewer Republicans, is also backing another bill that would address election security including strengthening protections for poll workers and improving the US Postal Service’s handling of mail ballots, both issues that also came up in the 2020 election.
The ECA reforms can only address one part of the democratic process
ECA reforms are important, but they won’t touch on other gaps in the democratic process, Rep. Jamie Raskin (D-MD), a member of the House’s January 6 committee, told reporters on Thursday.
“Reforming the Electoral Count Act is necessary, but it is not sufficient,” said Raskin. “If all our committee did was come out and say that the vice president of the United States doesn’t have the power to unilaterally nullify the Electoral College votes, which no serious person ever believed ... then we obviously would not have done enough to fortify our institutions.”
Other legislation intended to protect voting rights, for example, has languished in Congress and would be vital to checking state laws that have attempted to disenfranchise communities of color. Additionally, the ECA is limited in its ability to address state-level policies that govern election administration and oversight.
“One of the concerns is that states are taking steps to change state processes and authorities for certifying elections,” Rebecca Green, a co-director of the election law program and professor at William & Mary Law School, previously told Vox. “Electoral Count Act reforms would not touch those internal state processes, which are the domain of states and state legislatures.”
Still, these reforms would be an important new safeguard that don’t currently exist.
“The problem that we’re facing, that many people believe in election conspiracies and seem willing to take steps to undermine elections, is a big problem that’s going to take a lot to resolve,” said Alex Tausanovitch, the director of campaign finance and election reform at the Center for American Progress. “The Electoral Count Act is one piece of that.”
Ben Jacobs contributed reporting to this story.