Time To Update 130-Year-Old Law Trump Tried To Use For 2020 Theft, Nervous Observers Say

WASHINGTON, DC - JANUARY 07: Electoral college ballots are boxed during a joint session of the 117th Congress in the House Chamber of the U.S. Capitol where all the Electoral College votes from the States will be del... WASHINGTON, DC - JANUARY 07: Electoral college ballots are boxed during a joint session of the 117th Congress in the House Chamber of the U.S. Capitol where all the Electoral College votes from the States will be delivered and verified on Thursday, Jan. 7, 2021 in Washington, DC. (Kent Nishimura / Los Angeles Times via Getty Images) MORE LESS
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November 4, 2021 9:17 a.m.

As then-Vice President Mike Pence hid for his life during the Jan. 6 Capitol attack, the lawyer who’d been advising Donald Trump on his efforts to steal a second term denounced Pence in an email, saying that he should have used a 130-year-old law to reject the will of millions of voters. 

The siege of Congress, “is because YOU and your boss did not do what was necessary,” Trump lawyer John Eastman told a top Pence aide. The Washington Post reported the message on Friday. 

What was “necessary,” according to the now infamous Eastman “memo” to Donald Trump, was for Pence to insert himself into Congress’ Electoral College counting process, rejecting votes from states where Trump falsely claimed he’d been robbed. Pence said Monday that, when he decided not to intervene, he was thinking of James Madison and Psalm 15 — which celebrates those who keep their oaths “even when it hurts.” 

But Pence was only relying on the Bible because of the deficiencies in the Electoral Count Act (ECA) — the relatively ancient law that governs Congress’ counting of states’ Electoral College votes. The law was passed a few years after the disputed 1876 election, when several states sent two sets of results to Congress. 

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‘They Should Be Cleaning This Up’ 

For months, constitutional law experts and members of Congress have campaigned to clarify and modernize the law lest it lead to disaster once again. In particular, lawmakers and observers hope to make it harder for members of Congress to object to states’ votes.

“They should be cleaning this up in 2021 so that this doesn’t happen again,” Zach Wamp, a former Republican congressman from Tennessee and co-chair of Issue One’s “ReFormers Caucus,” told TPM, referring to Congress.

“There needs to be new language, modern language. There needs to be clarity in the legislation, and there also, frankly, needs to be a higher level of opposition to trigger a debate on the floor of the House and the Senate over the results of the election.” 

The ECA has been panned for decades as vague, confusing and open to deliberate misinterpretation. 

In short, the law governs how states’ Electoral College votes are counted in Congress. While Congress’ only responsibility is to count states’ Electoral College delegations, vagaries in the old law’s wording — what does it mean for a vote to have been “regularly given”? — gave Republicans something to gesture at while they staged their effort to reject several states’ votes and steal a second Trump term. 

And while Pence resisted pressure from Trump and others to throw out the will of tens of millions of Americans under the law’s shaky authority, there’s no saying how future vice presidents or congresses might try to use it. Critics say it’s time for a change. 

“We’re looking at the 1887 Electoral Count Act and whether or not we need to make amendments to that in order to ensure that in the future this kind of objection to electors isn’t so subject to potential abuse,” Rep. Liz Cheney (R-WY) said in a recent interview flagged by CNN. The outlet reported Monday on a fresh effort to change the ECA, this time from the committee investigating the Capitol attack.

Advocates for change are trying to show Republicans that the danger presented by the law runs both ways. 

“[T]here is a real hero opportunity for a Republican Senator to take this on, since it’s a Democrat, Vice President Kamala Harris, who will preside over the joint session of Congress the next time we count the electoral college votes,” Trevor Potter and Norm Ornstein, president of the Campaign Legal Center and senior fellow emeritus at the American Enterprise Institute, respectively, wrote for TPM in August.

Sen. Angus King (I-ME) and Rep. Zoe Lofgren (D-CA) have both worked on updates to the ECA. But Wamp said he’s also spoken to several Republican members of the House and Senate about ECA reform — including party leadership — who, he said, “agree that this needs to be done.”

Without filibuster reform in the Senate, such an effort would likely require buy-in from Republican leaders, and they haven’t touched the topic so far, at least publicly. Wamp raised one argument that he figured could help win Republicans over — the fact that a vice president of either party could end up in Pence’s position. “They could have Vice President Harris sitting there, using the same kind of arguments to challenge the results of the next election,” he theorized. 

‘Far Too Vulnerable’ 

Wariness around the ECA preceded the 2020 election, most notably when reporter Barton Gellman imagined “The Election That Could Break America” in a September Atlantic story. 

But ever since Trump targeted the date that Congress counts Electoral College votes — Jan. 6 — the scrutiny on the outdated law has only increased. 

“This American tradition is far too vulnerable to misunderstanding and manipulation,” the National Task Force on Election Crises wrote in one of several calls to change the ECA. “The federal law governing the casting and counting of electoral votes—the Electoral Count Act of 1887—is severely flawed and can no longer be relied upon to ensure a peaceful conclusion to presidential elections.” 

A majority of Americans, including majorities of each major party and independents, support updating the ECA, according to a recent poll commissioned by the Campaign Legal Center, Issue One, Protect Democracy, and Represent.Us. 

The poll asked respondents about a proposal that would “establish more clearly defined rules for Congress and the vice president to follow when counting the Electoral College votes in January, and would make it more difficult for members of Congress to reject a state’s certified presidential election results.” 

For Wamp, who’s talking with members of Congress about reforming the ECA, that clarity is desperately needed. 

“It needs to be modernized,” he said of the law. “The legislation is 130 years old.”

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