Trump Tried To Use This Law To Overturn His Loss, But Now Congress Could Change It

Bills in the House and Senate might clarify the Electoral Count Act of 1887 to prevent a repeat of Jan. 6.

In his relentless effort to stay in office despite clearly losing the 2020 presidential election, Donald Trump and his legal team planned to use a vaguely defined 19th century law setting the rules for how Congress counts electoral votes. Now lawmakers are working on bills in the House and the Senate to reform that law so it cannot be abused in the future.

The Electoral Count Act of 1887 addresses any challenged or “failed” votes in one or more states. Election law scholars warned in 2020 that this law posed a grave threat as then-President Trump ramped up his false claims of election fraud before Election Day. It became reality afterward when Trump refused to concede the election and pursued a strategy, along with Republican members of Congress and senators, to use the vague language of the Electoral Count Act to reverse his loss.

Electoral Count Act reform legislation is now being pursued by Rep. Zoe Lofgren (D-Calif.) in the House and Sen. Angus King (I-Maine) in the Senate. The laws are still in the drafting stage.

King says that he has legislation in the works to reform the law with bipartisan support. Lofgren, chair of the Committee on House Administration, sent a letter to all members of the House Democratic caucus on Wednesday calling the current law “antiquated, incomplete, and badly in need of reform,” while asking for input on what reform legislation should look like.

“I am confident that the ECA can be reformed in a way that ensures orderly and peaceful transfers of power in future presidential elections, and I will soon introduce legislation to do exactly that,” Lofgren writes in her letter.

An image of President Donald Trump appears on video screens before his speech to supporters on Jan. 6 as the Congress prepared to certify the Electoral College votes. The U.S. Capitol riot began as his speech ended.
An image of President Donald Trump appears on video screens before his speech to supporters on Jan. 6 as the Congress prepared to certify the Electoral College votes. The U.S. Capitol riot began as his speech ended.
Bill Clark via Getty Images

Trump’s campaign to overturn his election loss rested on abusing the vagueness of the Electoral Count Act. The law enables one member of the House and one member of the Senate to challenge any state’s certified electoral vote submission when the vote is “not … regularly given.”

The phrase “regularly given” leaves much to the imagination. What is an election that is not “regularly given”? Could it be merely an election that one side believed to be tainted whether there was proof or not?

Even before votes were cast, Trump labeled the entire election corrupt. When he lost, he pressured election officials and governors in the closest swing states of Arizona, Georgia, Michigan, Pennsylvania and Wisconsin to refuse to certify Democrat Joe Biden’s win or to “find” votes to make him the winner. He pressured the Department of Justice to intervene and affirm his false election fraud claims. And he got Republican electors in these five states to submit illegitimate electoral votes for him. All of this was in service of proving that the election was “not … regularly given.”

The plan as laid out in a memo written by conservative legal luminary John Eastman was for Vice President Mike Pence to unilaterally discount the Biden electoral votes for the five states as resulting from failed votes and gavel in Trump as the winner. This action was nowhere provided for by the Electoral Count Act, and Pence refused to abide. Pence’s refusal left Trump with a losing hand. Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) agreed to join dozens of Republican House members in contesting the elections in these states under the Electoral Count Act, but they lacked the votes to change the outcome. And so, on Jan. 6, Trump sicced a crowd of thousands of his supporters on the U.S. Capitol.

Though there is no legislative language yet drafted for the bills to reform the Electoral Count Act, the idea would be to make it far more difficult for Congress to challenge state electoral vote submissions while mandating that those submissions accurately reflect the popular vote totals of the states.

“One of the things we’re looking at is the role of state legislatures in the presidential selection process versus the role of voters in the presidential selection process,” said Fred Wertheimer, the president of Democracy 21, who is working on Electoral Count Act reform ideas outside of Congress. “We want to make sure that it is voters that decide, not state legislatures.”

As Trump pursued his plot to overturn the election, he hoped that the Republican state legislatures in the five states whose results he challenged would certify an alternative slate of electors in Trump’s favor in opposition to their governor’s submissions accurately reporting Biden’s win. Such alternative slates never materialized and would likely not comply with the Electoral Count Act anyway. But the point was never to fit inside the boundaries of the law. The point was to manufacture the public narrative needed to pressure Pence and other Republicans to bow to Trump’s will.

That threat still exists. A Republican lawmaker in Arizona even introduced a law ― it was not adopted ― to formally allow the state legislature to overrule the electorate and certify the election for a candidate of its choosing. One avenue of reform for the nascent legislation would be to require Electoral College certifications to reflect the popular vote total and not the say of any other body.

Sen. Josh Hawley (R-Mo.) objected to counting the electoral votes of two states that President Joe Biden won as part of a plan to use the Electoral Count Act to overturn the 2020 election.
Sen. Josh Hawley (R-Mo.) objected to counting the electoral votes of two states that President Joe Biden won as part of a plan to use the Electoral Count Act to overturn the 2020 election.
Handout via Getty Images

Other areas of reform include increasing the threshold for Congress to challenge a state’s election as “not ... regularly given.” The current threshold of one House member and one senator has enabled two challenges to election results in the past 20 years. First, when Democrats challenged George W. Bush’s reelection in 2004, albeit with an admission that they were not seriously intending to overturn the result, and second, when Trump actually tried to overturn his loss.

Further, Congress could replace the phrase “not ... regularly given” by actually defining the terms by which a state’s presidential election could be deemed to have failed. This could be limiting it to an election disrupted by a natural disaster or mass casualty attack, or, as former Rep. Zach Wamp (R-Tenn.) says, “unless someone was bribed or held at gunpoint” to fraudulently change the results.

“You need to change the law to make sure there is zero confusion,” added Wamp, who is lobbying Republican lawmakers to support Electoral Count Act reform through his position as co-chair of the Issue One ReFormers Caucus.

Wamp believes that Congress has to approve Electoral Count Act reform in this Congress and should do so on a bipartisan basis.

“The argument I make to Senate Republicans, and I’ve had conversations with a lot of them, is you have to put country over party,” Wamp said.

As congressional Democrats pursued a response to shore up American democracy in the wake of Trump’s assault, they first proposed legislation to expand voter access and restore the Voting Rights Act of 1965. As Republican-run states passed laws that could allow partisan actors to subvert the results of their elections, new legislation was introduced to address that threat. The expansion of voter access and measures to counter election subversion are now in the Freedom to Vote Act while the John Lewis Voting Rights Advancement Act would restore sections of the Voting Rights Act gutted by Supreme Court rulings. Reform of the Electoral Count Act, the law Trump tried to use to subvert the 2020 election, had been left out, until now.

Wertheimer, who has been lobbying Congress on campaign finance and democracy reform issues for more than 50 years, isn’t so sure it would pass, given the need to overcome the Senate filibuster, which routinely blocks legislation favored by the slim Democratic majority.

“Everything we’ve seen from Republicans in Congress has been to support the voter suppression efforts going on in a number of states,” Wertheimer said. “And they certainly have not rejected President Trump’s outrageous claims that the election was stolen from him.”

If there are 10 Republicans in the Senate who would like to prevent a repeat of 2020 and keep the ECA reform bills from being filibustered, then those measures could pass on their own. Otherwise Electoral Count Act reform would need to be bundled with the larger voting rights package and pass only if enough Democrats decide to change the Senate’s filibuster rules.

If reform is not adopted, the window that Trump, a likely 2024 Republican nominee, tried to use to steal the election still remains open.

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