Lawmakers see 'rapidly closing window' to reform a 19th-century law that fueled the insurrection
By Jim Puzzanghera Globe Staff,Updated April 29, 2022, 7:48 a.m.
Then-vice president Mike Pence and House Speaker Nancy Pelosi presided over a joint session of Congress convened to certify the electoral votes early on Jan. 7, 2021, hours after the insurrection.ERIN SCHAFF/NYT
WASHINGTON — Can Congress put new safeguards in place to save American democracy from another insurrection attempt — this one perhaps successful?
The clock might be running out.
A bipartisan handful of lawmakers is working to pass at least one key reform to help prevent a repeat, zeroing in on an antiquated 19th-century law at the center of the events of Jan. 6, 2021. They're hoping to come to an agreement on changes even before the special House committee investigating the insurrection releases its findings in the fall after high-profile public hearings in June.
Even small-scale reforms to head off another attempt at overturning a valid election may become out of reach by November's midterm elections, when Republicans — who almost all opposed the panel's creation — are expected to win back at least one chamber of Congress.
"Everyone understands that after we get too close to the midterms, it's going to be hard to get anything done," said Representative Elaine Luria, a Virginia Democrat who serves on the Jan. 6 committee.
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That's given special urgency to the group's attempts to hammer out changes to the Electoral Count Act of 1887, whose vulnerabilities former president Donald Trump's supporters sought to exploit as part of their pressure campaign against then-vice president Mike Pence to throw out Joe Biden's win.
The law was designed to avoid exactly the kind of chaos that Trump's supporters sought to cause when Congress met to certify the 2020 election. But it is so vague and poorly written that it helped fuel the crisis instead of quell it; its ambiguities gave Trump and his backers the temerity to make the illegitimate claim that Pence had the power to invalidate the electors from seven states that voted for Biden.
Such a move, which Pence rejected and legal scholars have said would have been illegal, would have overturned the results and made Trump the winner, reversing Biden's clear 306-232 electoral vote victory.
"It's the worst-drafted law that I've ever read in my entire life," said election law expert Matthew Seligman, a fellow at Yale Law School. "It allows politicians to do things that technically do violate the law but they get away with because nobody knows what the law actually means."
The law prescribes the procedures for counting and certifying state electoral votes that determine the presidency under the Constitution's Electoral College system. But unlike other reforms that split along partisan lines because of perceived advantages to one side or the other, updating the Electoral Count Act to clearly prevent politicians from overturning valid election results appeals to Democrats and some Republicans for a simple reason — the law's ambiguities could hurt either party in the future depending on who is the vice president.
The proposed reforms, which are still being hashed out, would make it clear that the vice president's role is purely ceremonial, raise the threshold for Congress to consider objections to a state's slate of electors, and give courts more time to work through legal challenges.
Another law that may be reviewed is the Insurrection Act, which gives the commander in chief the power to use the military in times of crisis. Some of Trump's supporters encouraged him to invoke the power and essentially declare martial law after the 2020 election.
Three days before Biden's inauguration, Representative Marjorie Taylor Greene, a Georgia Republican, said in a text message to Trump's chief of staff, Mark Meadows, that several House members "are saying the only way to save our Republic is for Trump to call for Marshall law" — misspelling the term — according to messages obtained by CNN. Trump also threatened to use that 1807 law to send troops to quash protests after the death of George Floyd.
Representative Zoe Lofgren, a California Democrat on the Jan. 6 committee, said the panel should consider whether the Insurrection Act needs to be reformed to prevent its misuse in the aftermath of an election.
"Reports of serious considerations to use the act to 'stop the steal' runs directly counter to the expectations of our country's founders and the act's authors," Lofgren said in a statement. "It seems worthwhile to review the text of the Insurrection Act."
So far, there is more momentum to change the Electoral Count Act. The leaders of the bipartisan Senate effort, Republican Susan Collins of Maine and Democrat Joe Manchin of West Virginia, have described the law as "archaic" and containing "deep and serious structural problems." They are backed up by election law experts and a high-profile panel convened by the American Law Institute, an independent organization that works to clarify, modernize, and improve US law.
The panel, whose members included Bob Bauer, who was White House counsel to President Barack Obama, and Don McGahn, who held the same post under Trump, recently laid out principles for reforming the Electoral Count Act. They said the law "is widely seen to be impenetrably complex and poorly conceived."
That wasn't the intention when Congress passed the law in the aftermath of the contested 1876 presidential election, which was decided by a 15-member commission after four states sent Washington competing sets of electoral votes, leaving the narrow race up for grabs.
The Electoral Count Act aimed to avoid future election chaos by prescribing how Congress should deal with disputes about electors when it meets in a joint session every four years to certify the presidential election results as required under the 12th Amendment. The act was better than no law at all given the Constitution is silent on the matter, but experts said it still had major flaws.
"It's very poorly written. It's old. It has parts that are not clear," said Rick Hasen, an election law professor at the University of California, Irvine. "Even before the 2020 election, many of us had been calling on there to be reform because of those problems."
One flaw exploited in the aftermath of the election was vague wording about the ability of a state legislature to appoint an alternate slate of electors if a state had "failed to make a choice" on Election Day, Hasen said in a Harvard Law Review Forum article. The provision "applies to something like a natural disaster that prevents voters from casting their ballots," but Trump and his allies argued that the election in some states won by Biden had "failed" because some voting rules had been changed during the pandemic and their false allegations of widespread fraud.
Hasen said the law was riddled with "gaps and ambiguities." John Eastman, a conservative lawyer working with Trump's legal team, argued before the insurrection that the Electoral Count Act was unconstitutional and that Pence could simply ignore it and invalidate the electors from seven states that Biden won, according to a memo obtained by The Washington Post.
But Pence's counsel, Gregory Jacob, argued that the Electoral Count Act "to the extent that it is constitutional" makes the vice president's role in resolving disputes over electoral votes "largely ministerial," according to a memo obtained by Politico. Minutes before Pence presided over the Jan. 6 vote counting — a process halted a short while later when violent Trump supporters broke into the Capitol — he issued a statement saying "my role as presiding officer is largely ceremonial."
But Pence also said the Electoral Count Act established procedures for members of Congress to contest electors and he welcomed any effort to do so.
Those procedures involved at least one member of the House and Senate objecting to a state's electors, which then requires each chamber to debate and vote on the objections. If both chambers agree, the state's electoral votes are disqualified. Seligman said the law gave some in Congress the impression they had the authority to reject electors because those votes, in the wording of the law, were not "regularly given."
Trump supporters in the House claimed the term "regularly given" extended to alleged irregularities in the casting or counting of Americans' presidential ballots and used that to raise objections on Jan. 6 to the electors from six states. With two of those states, Arizona and Pennsylvania, a senator joined a House member in making the objection, allowing for debate and a vote. In each case, both chambers soundly dismissed the objection, although a majority of House Republicans voted to uphold them.
But Seligman, who wrote a 100-page paper on the vulnerabilities in the law, said the phrase "regularly given" was misused and refers to the electors themselves and whether they were bribed.
"Properly interpreted, the act doesn't permit that," he said of tossing out electoral votes because of alleged irregularities in the popular vote or the conduct of the election. "But it's so broken and so vague and so convoluted that the fact that the act doesn't actually let members of Congress do what they did was no impediment."
Beyond that, Seligman said there is another major flaw in the Electoral Count Act: It gives great weight to the certification of electors by a state's governor. That would allow a rogue governor to ignore the results of a state's popular election and any legal challenges to it and certify their own preferred slate of electors.
Nine of the past 34 presidential elections could have been overturned by the losing side if they chose to exploit the law's flaws in this and other ways, Seligman's research found.
The solution, he said, is to change the law to defer to legal challenges to the vote decided by the courts and make clear that politicians cannot insert themselves into the electoral count process after that.
"If we allow this law to persist, we are inviting a constitutional crisis where there is just blatant political manipulation of the results," Seligman said.
Many lawmakers from both parties agree the law requires fixing.
"I think it needs clarification," said Senator Shelley Moore Capito, a West Virginia Republican who is part of the bipartisan Senate group. She has been working to clear up ambiguities about the role of the vice president in the counting process and how electors could be disqualified.
But some Democrats are pushing to add other reforms to the package, particularly after legislation to ensure voting rights failed in the Senate this year because of Republican opposition. The bipartisan group met Tuesday night and Senator Jeanne Shaheen, a New Hampshire Democrat, said she was "encouraged by the progress that we are making on a range of electoral issues," including protecting election workers who have been subjected to threats.
Republicans warn that any bill that strays too far from reforming the Electoral Count Act will fail to get the bipartisan support it needs to pass the Senate.
"I think it's far better that we have a focused bill," Collins said. The bipartisan group's work comes as two Senate Democrats and independent Angus King of Maine have proposed their own reforms of the Electoral Count Act, including raising the threshold for Congress to consider and sustain objections to electoral votes.
"It ought to be done as soon as possible . . . and I think we'll be able to do it on a bipartisan basis," King said.
Hasen said reforming the Electoral Count Act, while not nearly enough, would be an important step. He also would like to see other changes, including requiring paper ballots or paper records of machine votes to allow for recounts to resolve false claims of irregularities.
"I think that reforming the Electoral Count Act is a necessary, but not sufficient, way for Congress to deal with the risk of election subversion," he said. "It's imperative to do what they can in the next several months. The window is rapidly closing."
Jim Puzzanghera can be reached at jim.puzzanghera@globe.com. Follow him on Twitter: @JimPuzzanghera.