“Congress shall be in session on the sixth day of January succeeding every meeting of the electors”

– Electoral Count Act

The Electoral Count Act

Most Americans know about the January 6th Capital Riots, but few know the 19th-century law behind it. When right-wing populist Donald Trump was voted out of office in 2020, he campaigned that the election was fraudulent and he had, in fact, won. Trump’s army of lawyers sued to reject votes in key states, but the courts denied his claims.

Determined to maintain power, Trump turned his attention to the Electoral Count Act, an antiquated law specifying the process for Congress to confirm the electoral votes of each state. Ambiguities in this 134-year-old document might provide a genuine avenue for a presidential election to be overturned. As the law has become a focus for bipartisan election reform in recent months, it’s worth understanding the law and its danger to American democracy.

A decade after the American Civil War, the election of 1876 was one of the closest and most controversial in US history. With widespread voter intimidation and alleged fraud, Congress formed a special committee to settle the dispute and declare the winner. Years later, in 1887, Congress passed the Electoral Count Act to clarify the process for confirming presidential elections. 

The law requires Congress to meet before the Vice President, who must declare every state’s electors and ask for objections. If two legislators object, Congress decides which slate of electors, the official or the alternate, is valid. Due to its unclear wording, Trump’s lawyers have argued that the law empowers the Vice President to declare neither slate of electors valid, meaning Vice President Pence did, as Trump asserted, have the power to overturn the election.

As the January 6th Special Committee has investigated the insurrection, a scheme to use the Electoral Count Act has been revealed. There were attempts in at least 7 key states that Trump lost to present alternate elector slates to Congress, though it remains unclear if Trump and Pence were involved. Before the insurrection interrupted the confirmation process, several objections were raised and many Republicans in Congress voted to reject the official elector slates in favor of Trump.

The Risk of Overturning an Election

It might be comforting to write these attempts off as desperation, but they must be taken seriously. Transfers of power, especially between political rivals, are a vulnerable juncture in any democracy. Every ambiguity in election law is an opportunity for a would-be autocrat. While it may be controversial, there is a genuine legal argument for the overturn of a contested presidential election.

Despite the clear security of the 2020 election, Trump’s misinformation campaign and attacks on media were enough to convince many Americans that the election was truly stolen. Even nine months after January 6th, 35% of Americans still felt that the election should have been overturned.

Ultimately, however, the risk of President Trump remaining in office was never high. While he had allies in Congress and state legislatures, any plan would’ve required the cooperation of Vice President Pence, who refused despite pressure from Trump.

Even with a cooperative Vice President, Trump still needed to contend with the courts. There is a clear precedent, most famously seen in Bush v. Gore, that the US Supreme Court can intervene in the case of contested election results. Even if the Supreme Court didn’t immediately intervene, they’d surely hear a case over the legality of the scheme. Legally overturning the 2020 election would’ve required the cooperation of political actors across several states, allies in both houses of Congress, the Vice President, and the Supreme Court, a difficult but not impossible undertaking.

So, what prevented Trump’s efforts in 2020? Ultimately, it came down to precedent and norms. Without Vice President Pence’s commitment to democratic norms and the legal precedent of judicial review in contested elections, Trump would’ve had a real shot at staying in office. While norms were enough in 2020, they’re far easier to get around than explicit legislation.

Reforming the Electoral Count Act

In January of 2022, following the failure of several larger election reform bills, a group of bipartisan Senators began work towards a targeted reform of the Electoral Count Act. While no clear proposals exist at the time of writing, many have been proposed.

The role of the Vice President could be explicitly declared ceremonial or removed altogether. Contesting a state’s results could require a greater fraction of Congress and a list of valid concerns. Reform could also make it more difficult for states to contest their elections and create alternate elector slates. Any of these changes would be an improvement.

There’s no doubt that changing the Electoral Count Act wouldn’t be enough to protect American democracy from backsliding. The US is plagued by election laws meant to suppress voting and skew elections. However, it’s clear that the 117th Congress will not be able to pass the election reform the US desperately needs. 

As Democrats and Republicans are open to reforming the law, it’s become the best available path to protect American elections. With Donald Trump widely expected to run again in the 2024 presidential election and Democrats likely to lose control of Congress by the end of the year, the time to reform the Electoral Count Act is now.