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Congress Passes Legislation That Will Close Off Presidential Election Mischief and Help Avoid Another Jan. 6

December 24, 2022 | FlaglerLive | 12 Comments

Reps. Diana DeGette, D-Colo., center, and Veronica Escobar, D-Texas, right, take cover as protesters disrupt the joint session of Congress to certify the Electoral College vote on Jan. 6, 2021.
Reps. Diana DeGette, D-Colo., center, and Veronica Escobar, D-Texas, right, take cover as protesters disrupt the joint session of Congress to certify the Electoral College vote on Jan. 6, 2021. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

By Derek T. Muller

Presidential elections are complicated. But in a move aimed at warding off future crises like the Jan. 6, 2021, riot at the U.S. Capitol, the Senate and House have passed legislation to clarify ambiguous and trouble-prone aspects of the process.




Currently, all 50 states and the District of Columbia hold simultaneous elections in November. The states and the district certify those results.

But that’s not the end of it.

When people cast votes, they’re actually voting for a group of people called “electors.” Groups of these presidential electors meet in December. They send their votes along to Congress, which counts them in January. The presidential candidate who gets the majority of electoral votes is, finally, declared the winner.

There are known weaknesses in these rules for how we administer presidential elections and tabulate results in Congress. Ambiguities in existing law have been exploited to try to make something go wrong. Legal theories were floated by allies of President Donald Trump after the 2020 election that suggested ways to undermine the results of the election, culminating in a failed insurrection at the Capitol.

That’s why a bipartisan group of congressional leaders aimed to pass reforms to the 1887 law governing this process, the Electoral Count Act, before the end of 2022.




As an election law scholar, I have suggested that Congress focus its reforms on a few crucial areas that could have wide bipartisan support. Now, it has done just that, and the omnibus government funding legislation that includes the Electoral Count Act reform passed the House on Dec. 23 and heads to the White House for President Joe Biden’s expected signature.

A man in a suit at a desk signs a paper.
Savannah Mayor Van Johnson signs a certificate of vote during the meeting of Georgia Democratic Electors to cast their Electoral College votes at the Georgia State Capitol on Dec. 14, 2020, in Atlanta.
Jessica McGowan/Getty Images

Discouraging mischief

The legislation, known as the Electoral Count Reform Act, was originally a stand-alone bill but was ultimately incorporated into the omnibus spending bill just passed by Congress. The reform legislation went through extensive public vetting and had broad bipartisan support.

It does many small things, but it does a few big things that deserve public attention for their ability to deter mischief in this important process.

I testified at a Senate committee hearing on the legislation at the invitation of two co-sponsors of the bill, Sens. Amy Klobuchar, a Democrat from Minnesota, and Roy Blunt, a Republican from Missouri. I have also spoken with members of Congress about its importance.




Here are the four major reforms in the bill:

1. Clarifies that Election Day is Election Day

Right now, presidential elections take place on the Tuesday after the first Monday in November. But existing law also allows states to choose presidential electors on a later date if they “failed to make a choice” on that day. This provision was designed in the mid-19th century for the few states that held runoff elections if no candidate received a majority. But no state uses it for that purpose today.

The provision leaves an open question: When has a state “failed to make a choice”? Some advocates in 2020 suggested that abstract questions about voter fraud or absentee ballots constituted such a failure and therefore meant the state could choose electors at a later date. That raised the prospect that states might send two sets of electors to Congress, a slate for the candidate who carried the popular vote and another slate, chosen later by the legislature. And that would invite Congress to undermine the popular election results by counting the second set of electoral votes.

Congress has closed that door in the Electoral Count Reform Act. There will be one day of choosing electors, with no possibility of a later choice. And state legislatures cannot show up after the election and attempt to change the rules – the bill mandates that state rules for how the election is run must be on the books before Election Day.

Ensures timely, accurate appointment of electors

In past years, especially in 2020, disputes about which votes should or should not have been counted raged on for weeks after Election Day. A federal court in Pennsylvania, for instance, rejected a lawsuit claiming that hundreds of thousands of absentee ballots cast in the 2020 presidential election should be thrown out because counties processed them differently from one another. The Electoral Count Reform Act creates a firm date for states to certify election results. Creating a firm deadline ensures a speedy end to any litigation.

Some Trump supporters in 2020 attempted to file rogue paperwork purporting to represent an alternative slate of electoral votes from a particular state. The act limits such mischief through expedited judicial review and clear obligations for state officials to submit accurate results to Congress. It requires state election officials to certify only the result that matches the outcome of the election held on Election Day, and nothing else. The act ensures that there is one true set of returns from the states.

Raises objection threshold

When Congress meets on Jan. 6 to count electoral votes, it is typically a ceremonial act. But since the 2000 presidential election, some Democratic and Republican lawmakers have objected or attempted to object to counting at least some electoral votes cast in presidential elections. Debate ensued, both in 2005 and 2021, which forced the chambers to separate and conduct two hours of debate over whether to count electoral votes.

To open debate currently requires just one member of each house of Congress to object. The act raises the objection threshold to one-fifth of the members, based on the principle that only under the most extreme circumstances should Congress consider refusing to count electoral votes.




It is simply too easy under the existing rules to cause mischief and turn this ceremony into an airing of grievances. Raising the threshold makes it harder to slow down counting and increases public confidence by refusing to give attention to baseless objections.

A man in a dark suit with white hair bumps fists with another man in a dark suit with gray hair.
Vice President Mike Pence, left, bumps fists with U.S. Sen. Roy Blunt, R-Mo., at the conclusion of the count of electoral votes in the House chamber during a reconvening of a joint session of Congress on Jan. 7, 2021.
Photo by Win McNamee/Getty Images

Defines vice president’s power

In 2021, Trump publicly and privately pressured Vice President Mike Pence to refuse to count electoral votes during the joint session of Congress. Pence would not do what Trump wanted, arguing he had no power to do so.

The act clarifies that the role of the president of the Senate – typically, the vice president – is ceremonial. The language is updated to reflect what is already known – the vice president has no unilateral power to determine whether to count electoral votes.

While some of these concerns have been around for many years, they have come to prominence only in recent years, and none more so than around the violent insurrection that took place when Congress last counted electoral votes.

With these simple bipartisan solutions, Congress has instilled confidence in future presidential elections.

Derek T. Muller is Professor of Law at the University of Iowa.


The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.

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Reader Interactions

Comments

  1. Jimbo99 says

    December 25, 2022 at 2:22 am

    What kind of legislation is Congress going to pass that prevents FTX & SBF-like off shore money laundering schemes that funded Democrats in 2020, 2022 elections and beyond ? Even HRC’s campaign of 2016 was funded similarly. The reality of 2008, HRC losing to Obama, she held her own party’s nomination hostage to eventually become Secretary of State.

    https://www.nbcnews.com/id/wbna24953561
    https://www.reuters.com/article/uk-usa-obama/obama-names-clinton-secretary-of-state-idUKTRE4B06WK20081201

    Russia, Russia, Russia long before Trump ?

    https://www.cnbc.com/2015/04/23/cash-flowed-to-clinton-foundation-as-russians-pressed-for-control-of-uranium-company.html

    Just keeping it real. Jan 6th, 2021 was the lamest insurrection ever as a threat to any world government as a spin on an insurrection.

    Reply
    • Tired of it says

      December 25, 2022 at 10:04 am

      When you can’t deny the facts…go with “what about…”. Keep trying to deflect from the despicable trump and the pathetic state of the Republican Party.

      Reply
    • Tired of it says

      December 25, 2022 at 10:06 am

      “Merry Christmas to EVERYONE, including the Radical Left Marxists that are trying to destroy our Country, the Federal Bureau of Investigation that is illegally coercing & paying Social and LameStream Media to push for a mentally disabled Democrat over the Brilliant, Clairvoyant, and USA LOVING Donald J. Trump,” the former president wrote.

      Says it all.

      Reply
    • Ray W. says

      December 25, 2022 at 9:59 pm

      You wrote that you were keeping it real. Then you didn’t keep it real. Please do better. I know that you are capable of so much more.

      Reply
  2. Sheila Zinkerman says

    December 25, 2022 at 8:08 am

    Reason for hope: bipartisanship. Parties have a lot in common when it comes to election integrity but each party underestimates the amount of that support by the other party. Common Sense American did a report measuring these perceptions. There is reason for hope.
    https://www.commonsenseamerican.org/2022-take-action/elections-pb-1/results/

    Reply
  3. Michael Cocchiola says

    December 25, 2022 at 9:15 am

    This should be called the Protect America From Trump Act.

    Reply
    • JimBob says

      December 25, 2022 at 1:10 pm

      As Floridians, we know Trump is the least of our worries!

      Reply
  4. Aj says

    December 25, 2022 at 9:41 am

    Will it work? Will another Republican do something similar? Time will tell. Good to see Repubs and Dems working together. Unusual but it does happen very seldom.

    Reply
  5. Skibum says

    December 25, 2022 at 9:52 am

    I am very pleased that this legislation passed both houses of Congress and will be signed into law by the president. I hope our nation never again has to go through the horror that was the Jan. 6 insurrection and the big lie about massive election fraud that never occurred in the 2020 presidential election. I believe the disgraced, twice impeached former president will go down in history as the worst president ever. But there are a lot of others still out there, so we as a nation need to watch our back because I don’t for one second think they will just go away quietly.

    Reply
  6. Bob says

    December 25, 2022 at 4:01 pm

    It was still an insurrection. {I’m curiously: who wears the pants in your house, looks like it’s not you}

    Reply
    • Hookah Smoking Caterpillar says

      December 26, 2022 at 12:00 pm

      Insurrection? Perhaps you should ask Marie Antoinette what a real insurrection looks like?

      Reply
  7. Laurel says

    December 26, 2022 at 5:29 pm

    Well, like it or not, we owe a lot to Trump. No one ever thought anyone would pull half the stunts and lies that Trump pulled. Even the Republicans told Nixon to resign, and Nixon looked like child’s play compared to Trump’s antics. Trump has shown us all the back doors, dark cracks in the system and manipulations that can be done to our democracy. We just never dreamed it until he came along!

    So, thank you Trump for showing us what real devious behavior can do, so that now we can fix it ensuring that it never happens to our country again. We will now have better legislation to prevent disingenuous, overbearing egos from taking over and trying to ditch our Constitution.

    It’s not over yet, but I believe the grifter has been exposed and hope he, and his kind, will not ever succeed. We came awfully close to a to a judicial system that would support his personal agenda, but I think more eyes are opening. We shall see. If he is not prosecuted to the full extent of the law, then we are still in trouble.

    Reply
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