Capitol Hill’s Jan. 6 investigators are exploring ways to Trump-proof future presidential elections by tightening up how lawmakers certify the results. There’s one problem: A future Congress might simply ignore them.
Lawmakers are required under the Constitution to finalize presidential elections by certifying the Electoral College vote on Jan. 6, which made that date a target for former President Donald Trump and his most fervent backers. That work is guided — as it’s been for more than a century now — by the Electoral Count Act, a complicated law passed after another rancorous White House race. But even at the time, there were deep questions about whether aspects of the law were constitutional.
And Congress has spent 134 years avoiding the subject.
Instead, it has agreed to abide by the Electoral Count Act every four years, even if, as a constitutional matter, the statute may be little more than a glorified suggestion. In fact, Congress has diligently sidestepped the debate by passing resolutions tying itself to the rules of the law — a nod to the notion that they might not be mandatory.
The unanswered questions leave today’s Congress in a perilous position. Democrats, along with the two House GOP members of the Jan. 6 select committee, want to prevent a future effort by Trump or any other losing candidate to attack the transfer of power during certification. That makes Electoral Count Act reform a central part of the select committee’s mandate.
Yet before the panel can propose a change to the law, it must at least try to settle a question that’s vexed generations of constitutional scholars: Can the Electoral Count Act’s key provisions be enforced, or can a rogue future Congress — in league with a losing presidential candidate — simply ignore it?…
Trump, seizing on ambiguities in the statute, pressured Pence to refuse to count dozens of Biden electors. The then-president also deputized allies in Congress to lodge as many challenges as possible, to try to delay certification of Biden’s victory. Pence’s refusal to go along turned Trump supporters against the vice president: some of the mob chanted “Hang Mike Pence” during the insurrection.
A year later, Electoral Count Act reform remains a low-profile pillar of the Jan. 6 select panel’s mission, with Rep. Zoe Lofgren (D-Calif.), spearheading the effort. Lofgren, who chairs the separate House committee that oversees elections, and her colleagues are hoping to specifically address weaknesses in the law that Trump and his allies sought to exploit.
Deborah Pearlstein, a constitutional law professor at Yeshiva University’s Cardozo Law School, suggested some “low-hanging fruit” changes to lawmakers that include raising the bar for substantive challenges to electoral votes and establishing a remedy if the House and Senate disagree on how to resolve a disputed set of electors.
“I’m worried about the Big Lie 2.0,” said Foley, the constitutional scholar, noting that the law barely held up amid Trump’s baseless fraud claims. “The system needs to be ready for a scenario where the issue wouldn’t be fabricated.”