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Fearing a repeat of Jan. 6, Congress changes eyes on electoral law

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WASHINGTON — Members of the select congressional committee investigating the Jan. 6 attack on the Capitol are pushing for revision of the complex and little-known law that former President Donald J. Trump and his allies tried to use to undo the 2020 election , arguing that the ambiguity of the statute endangers democracy itself.

The push to rewrite the Electoral Count Act of 1887 — enacted more than a century ago in the wake of another bitterly contested presidential election — has taken on a new urgency in recent weeks as more details have emerged about the scale of the plot. of Mr Trump to exploit his provisions to remain in power.

Mr. Trump and his allies, using a distorted interpretation of the law, tried to convince Vice President Mike Pence to throw out legitimate results when Congress met on Jan. 6 in a joint session to finalize the official count of the electoral votes. to feed.

It was Mr. Pence’s refusal to do so that prompted a mob of Trump supporters to chant “Hang Mike Pence” as they stormed the Capitol, delaying proceedings as lawmakers fled for their lives. . Members of Congress and the vice president eventually returned and completed the count, dismissing loyalists’ challenges to Mr Trump and formalizing President Biden’s victory.

But if Mr. Pence had done what Mr. Trump wanted — or if enough members of Congress voted to meet the challenges of Mr. Trump’s supporters — the outcome could have been different.

“We know we were dangerously close to a constitutional crisis because of the confusion in the minds of many people that was clearly planted by the former president about what the role of Congress actually was,” said Zach Wamp, a former Republican congressman from Tennessee who co-chairs the Reformers Caucus at Issue One, a bipartisan group pushing for changes in the electoral process.

Republicans in Congress have repeatedly blocked attempts by Democrats to change electoral laws in the wake of the 2020 crisis, and it’s not clear whether an effort to renew the Electoral Count Act will outperform. But experts have described the law as “almost incomprehensible,” and a revision has the support of several leading conservative groups.

“There are a few of us on the committee working to identify proposed reforms that could earn support across the spectrum from liberal to conservative constitutional scholars,” said California Democrat Adam B. Schiff, a member of the California Democratic Party. Commission. “We could very well have a problem in future elections that amounts to an interpretation of a very poorly written, ambiguous and confusing statute.”

Representative Liz Cheney, a Wyoming Republican and the committee’s vice chair, said Thursday that “the Election Count Act of 1887 is directly affected” and that the panel would recommend changes.

The constitution leaves it to Congress to finalize the results of the presidential election shortly before inauguration day. Article II, Section 1 says: “The President of the Senate, in the presence of the Senate and the House of Representatives, shall open all certificates and the votes shall be counted.”

But the process is detailed in the Electoral Count Act, which states that if lawmakers read each state’s election results at a joint session of Congress, members of the House and Senate can file written objections, which can be sustained as a majority. of both chambers agree. In the event that a state submits multiple slates to Congress, the governor’s certified voters would keep it, the law says, unless a majority in both houses votes to reject them.

The statute was written in the wake of the contested 1876 election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden, and has since dictated how Congress formalizes elections, usually without incident.

But what unfolded on January 6 tested its limits.

Both objections raised by Mr. Trump’s allies — who sought to invalidate the Pennsylvania and Arizona electoral votes — failed in the House, though the vast majority of Republicans supported them. But in the months that followed, it became clear that those challenges were part of a broader strategy. John Eastman, an attorney who advises Mr. Trump, devised a plan that included sending a list of Trump voters from seven states that Mr. Biden won to Mr. Pence, who chaired the joint session in his role as Senate President.

Mr. Eastman and other Mr. Trump’s allies suggested pressuring the vice president to accept the alternate list of Trump voters and throwing out legitimate votes for Mr. Biden. In such a scenario, Mr Eastman argued, a vote by those states’ delegations in the House in favor of Republicans could keep Mr Trump in power.

“The outdated law governing the electoral college vote is too vague and ripe for abuse, and it resulted in baseless objections that slowed down the Democratic process,” said Minnesota Democrat Amy Klobuchar and chair of the Senate committee. “It’s time to update this law to protect our democracy.”

New York Democrat and Majority Leader Senator Chuck Schumer has said he is open to reviewing the statute, and a small group of Senators, including Senator Angus King, independent of Maine, have been working on potential solutions.

A bipartisan coalition of state and local lawmakers is also on board, as are some organizations studying election issues, including Issue One and the National Task Force on Election Crises.

In documents circulating on Capitol Hill, the task force — calling the Electoral Count Act “seriously flawed” — proposes several broad changes. The suggestions include limiting the grounds for a legislature to object to a state’s vote counting and clarifying that the vice president’s role in the process is only ministerial, and thus does not have the power to unilaterally to throw away the votes of a state. It also recommended setting clearer time limits for states to elect voters.

The effort could be the focus of Congress’ next attempt to change electoral law after Republicans blocked legislation to set national standards for ballot access in response to voting restrictions enacted at the state level, and a narrower vote. measure to restore parts of historic voting rights Act weakened by Supreme Court rulings.

Contrary to those bills, there is significant support among Republicans outside of Congress for revising the Electoral Count Act, although no Republicans in Congress have publicly approved a rewrite. Prominent conservative writers such as Dan McLaughlin of The National Review, Walter Olson of the Cato Institute, Kevin R. Kosar of the American Enterprise Institute, and Ramesh Ponnuru of Bloomberg have argued for changing the law.

Trey Grayson, a former Kentucky Republican Secretary of State, said in an interview that he was concerned that, without legislative changes, the law would be abused by both sides in the future.

“I’m afraid this is going to become routine because the incentive structure is there,” he said. “It’s very easy for someone to play to grassroots, object, know they’re going to lose, but reap the rewards of relying on grassroots. Those actions damage our democracy.”

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